The Court-Annexed Mediation Rules which will be implemented in the District and Regional Courts form part of Government's effort to transform the civil justice and enhance access to justice.
The Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) were approved by the Minister and came into operation on 1 December 2014. The pilot project sites are in Gauteng and the North-West Province. The pilot project will be rolled out to sites, in other provinces, in conjunction with the rationalisation process.
The objective of these Rules is to assist Case-Flow Management in the reduction of disputes appearing before Court and to promote access to justice. The Rules make provision for the referral of disputes for mediation at any stage during civil proceedings, provided that judgment has not been delivered by the Presiding Officer.
Mediation adopts a flexible approach compared to the rigid and tedious legal processes which most often require services of a lawyer to present before court. Disputes are usually resolved in a reconciliatory manner and mediation, therefore, promotes restorative justice.
To assist with the implementation of the Mediation Rules the Minister has appointed an Advisory Committee which will advise the Minister regarding the norms and standards for mediators and for the accreditation of mediators for enlistment to the panel as required by the Mediation Rules.
Which matters can be referred for mediation?
Most disputes are appropriate for mediation, as long as the court has jurisdiction in respect of the matter. Examples are contractual claims; motor vehicle collision and other damages claims; neighbourhood disputes and family disputes.
Will there be court fees?
There are no court fees, but the mediator is entitled to charge a fee according to a fixed tariff. The parties contribute equally to this fee, which must be paid before the mediation commences.
Who will be the mediator?
The mediator will be a person that the parties choose, with the help of the mediation clerk, from a panel of accredited mediators appointed by the Minister of Justice and Correctional Services. All mediators have undergone mediation training. Some specialise in particular types of matters, such as family disputes. The clerk will advise you as to which of the mediators is appropriate for your dispute, depending on factors such as area of practice and experience.
Will the mediator be a lawyer?
Not necessarily. Many mediators are lawyers, but they may also be experts from other professions. For example, engineers are often mediators in building construction disputes. Family disputes are often mediated by social workers or psychologists.
Will the mediator tell the parties who is right and who is wrong?
No, a mediator does not judge the parties or tell them what the solution to their dispute is. It is for them to fi nd a solution that meets their needs and interests. The task of the mediator is to assist them to do this.
The mediator will help them to identify the real issues and explore different options for resolving those issues. The mediator assists them, using skills acquired through training and experience, to diffuse conflict and explore options for settlement. If the parties reach agreement the mediator will assist them to draft a settlement agreement. The settlement agreement is enforceable in law as a contract. It can be given additional strength by having it made an order of court, if the parties agree to this.
If the parties are unable to settle their dispute through mediation, then they may still resort to litigation and adjudication.
Do I need to be represented by a lawyer?
No, parties have the right to be represented if they want to be, but this is not obligatory. Parties who are represented will be responsible for the fees of their legal practitioners. It is the task of the mediator to ensure a fair and structured process with a level playing fi eld, irrespective of whether parties are represented by lawyers or not. Parties can also request that a friend or family member be allowed to be present during the mediation to lend support.
Can mediation be used where litigation has already commenced?
Yes, matters can be referred for mediation at any stage during the court process before a judgement has been given.
How long does the process of mediation take?
Simple disputes can often be resolved within a few days. More complex disputes may take a few weeks.
What happens in an event where mediation has resulted in a positive outcome, but one of the parties later fails to comply with their agreement?
If the agreement has been made an order of the court, then it can be enforced through the Sheriff of the Court in the same way as any order of a civil court. If it has not been made an order of the court, then it is enforceable in the law in the same way as any other legal binding agreement.
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