What is Mediation?

Mediation is a form of Alternative dispute resolution which means resolving disputes between two or more parties who possess a genuine desire to achieve a mutually satisfying outcome. The mediation process involves introducing a neutral third party who rely on their personal experience, skill and training to conduct and guide parties towards a mutually agreed settlement.

The mediator acts as a facilitator by assisting the disputing parties to focus on a mutual problem, discuss possible solutions and agree upon a settlement agreement. The Mediator does not choose sides or represent either one of the Parties.  The process is confidential and Without Prejudice of Rights.
Should a settlement be reached the settlement itself can be made an order of Court.  If no settlement is reached, the parties resume litigation.  

The process is notably more efficient than litigation. This efficiency means that the process is extensively shorter, and the savings in financial and emotional terms are unparalleled.
Hence mediation is a quick and comparatively inexpensive process.

Mediation is confidential, however in certain circumstances, a mediator may have to disclose information when:
1) There is an existing law that requires the mediator to report certain information such as child abuse
2) The mediator believes it is necessary to reveal information so as to prevent serious bodily injury or death
3) The mediator’s conduct is questionable
4) The parties involved in mediation give permission to release information.

When is Mediation used?

Mediation may be used in any situation where there is two or more disputing parties that are unable to resolve their concern(s) on their own. Mediation is often used as an alternative as part of a litigation court process (e.g. family law matters, workplace issues).

Resolution Mediation focuses primarily on family and divorce mediation. The mediator guides the discussion and negotiations, without attempting to influence the parties with regard to the content of the settlement agreement.

The responsibility remains entirely with the parties for the decisions reached, with the mediator merely keeping the negotiations and communication open. The approach involves helping the parties to identify key issues they have in common as well as issues that are in dispute.

The mediator then guide them towards reaching an agreement, without intimidation or undue influence.

Role of the Mediator

Mediators act as unbiased and independent third parties that facilitate dialogue between parties and help them explore their issues and reach a mutually acceptable agreement.

The principal role of the mediator is to facilitate communication between the parties in conflict with a view to helping them reach a voluntary resolution to their dispute that is timely, fair and cost-effective.

The image below identifies areas of focus for a mediator.

Directive by Judge President to strike Unmediated Cases from High Court roll

(Rule 41A compliance)
On the 20th of July 2021, Judge President Makgoba issued a directive on the implementation of Rule 41A which compels legal practitioners to attempt mediation bringing an action or motion before the Court.

The directive was issued more than a year after the implementation of Rule 41A of the Uniform Rules of Court and leaves legal practitioners with just over a month to ensure that they are in compliance with the said rule. Courts have been reaping the benefits of mediated settlements and the latest directive is a continuation on the path to clear congested court roles and backlogs.

We expect a marked uptick in mediated settlements, given that from 1 September 2021 no High Court will hear a case where mediation has not been attempted in line with the provisions of Rule 41A. Courts will instead strike such matters from the roll.

Given acting judge Brassey’s ruling in Brownlee v Brownlee [watch video] [original judgment], penalties on non-compliant legal practitioners become a very real possibility.

Directive by Judge President