- This is a form of mediation that happens with the assistance of the court
- It is voluntary and both parties must agree to mediation
- The mediation is arranged by an officer of the court, named
the Dispute Resolution Officer who communicates with the parties and facilitates the appointment of a mediator.
- Further steps in the court case will depend on the outcome of the mediation.
The Rules Board for the courts of Law have amended the rules regulating the conduct of proceedings of the Magistrates Courts of South Africa with a view of introducing alternative dispute resolution mechanisms by way of court-annexed mediation or a CCMA kind of alternative dispute resolution, into the court system.

The implementation of court-annexed mediation at pilot site courts will start on to 1 December 2014 at certain sites in Gauteng and North West. It will be rolled out to further pilot sites later.

The rules were published in Government Gazette 37448 on 18 March 2014 and they provide the procedure for the voluntary submission of civil disputes to mediation in selected courts. The rules apply to the voluntary submission by parties to mediation of disputes prior to commencement of litigation; and disputes in litigation which has already commenced.
In essence what the Rules board has done is introduce a process of Mediation into all matters of litigation with a view of promoting access to justice, promoting restorative justice, as well as preserving relationships between litigants or potential litigants which may become strained or destroyed by the adverse nature of litigation.

Amongst all of this the concept of mediation is aimed at facilitating an expeditious and cost-effective resolution of a dispute between litigants or potential litigants, as well as assisting litigants or potential litigants to determine at an early stage of litigation or prior to commencement of litigation, whether proceeding with a trial or an opposed application would in fact be in their best interests or not. Litigants or potential litigants are, through the process of mediation, also provided with solutions to their dispute which may be beyond the scope and powers of judicial officers such as the informal solution and settlement of disputes.
In essence from the 1st of August 2014 parties will have the option of referring a civil dispute to mediation through agreement or on application. This will include referring an action, a claim instituted by way of a summons, and/or referring an application, a claim instituted by way of a notice of motion, to mediation. What is interesting with the court-annexed mediation approach to resolving matters is that disputes can be submitted to mediation prior to and/or after the commencement of litigation, provided that a judgment or order has not yet been made in the matter.

If parties decide that they wish to refer a dispute to mediation, they will conclude a written agreement to this effect. Once an agreement is signed and filed at court, the parties will be given the opportunity to lodge statements of claim and statements of response prior to the mediation sessions commencing. A mediator is then appointed to assist the parties in an attempt to resolve the dispute by facilitating discussion between the parties. The mediator will also aim at identifying and clarifying the issues in the dispute as well as exploring areas of compromise and generating options which may aid in resolving the dispute.

If the dispute is resolved, a settlement agreement incorporating the terms of the settlement l be drafted and filed at court to close the matter;

If the dispute is not resolved, the dispute will be referred back to the clerk or registrar of the court with advice that the dispute could not be resolved.
The parties participating in the mediation are liable for the fees of the mediator and mediation in equal portions, save for instances where the services are provided free of charge. A party may however undertake to pay the fees of the mediator and mediation process alone. The fee structure has been published and sets out the fees that will be due and payable in Court Annexed Mediation.

Although a party may be legally represented at mediation, both parties, the Applicant and Respondent in the mediation, must attend the sessions in person. In the case of a juristic person or a firm or partnership, a duly authorised representative must attend the mediation proceedings and enter into discussions on the juristic persons behalf.

The concept of court-annexed mediation is an interesting development in our law and courts and given the correct framework and personnel behind the execution of the system could necessitate the phasing out of bad claims which should not find their way into court. In addition the mediation process could well encourage parties to settle a dispute without the rigid and mechanical means of litigation.

This form of mediation is extremely important in light of the ambit of the Children’s Act, where the best interest of the child is paramount. Section 7(n) specifically states that any action or decision that would avoid or minimize further legal or administrative proceedings in relation to the child, is in the best interest of the child.

 

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