INTRODUCTION

As legal procedure in South Africa continue to evolve, Rule 41A of the High Court Rules is playing an increasingly important role in promoting mediation, as way for people to try and settle their disagreements without engaging in litigation. Rule 41A sets out a series of steps parties must take, encouraging parties to think about mediation early on or during the case, to help save time, lower costs, and possibly reach a friendlier solution before the matter reaches the litigation stage.

WHAT IS MEDIATION UNDER RULE 41A?

In Nsele v Road Accident Fund and Another (2023/023750) [2024] ZAGPJHC 793 (12 August 2024) the court looked at the definition of mediation as outlined in Rule 41A and defined “mediation” as a voluntary process entered into by agreement between parties to a dispute. In this process, an impartial and independent person known as the mediator. The mediator’s role is to help the parties either resolve their dispute, identify issues where agreement can be reached, explore areas of compromise, generate options for resolution, clarify priorities, or facilitate discussions to assist in negotiations. It is an alternative dispute resolution method. Essentially mediation is achieved by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute. A “dispute” itself is defined as the subject matter of litigation between parties, or an aspect thereof.

ENCOURAGING MEDIATION BEFORE AND DURING LITIGATION

Rule 41A establishes several avenues through which parties are encouraged to consider mediation, shifting it from a peripheral option to an integral part of the court process. In every new action or application proceeding, the plaintiff or applicant is now required to serve a notice with their summons or notice of motion, indicating whether they agree to or oppose referral of the dispute to mediation. Similarly, the defendant or respondent, when delivering a notice of intention to defend or oppose (or at any time thereafter, but no later than delivering a plea or answering affidavit), must serve a notice indicating their agreement or opposition to mediation. These notices must substantially indicate the reasons for the party’s belief that the dispute is or is not capable of being mediated.

IMPACT OF MEDIATION ON THE LITIGATION PROCESS

When a dispute is referred to mediation, the parties must deliver a joint signed minute recording their election. Prior to the commencement of mediation proceedings, they must also enter into an agreement to mediate.

A significant impact of opting for mediation is the suspension of time limits prescribed by the Rules for the delivery of pleadings and notices, the filing of affidavits, or any other procedural step. This suspension takes effect from the date the joint minute is signed and lasts until the conclusion of mediation. This provides parties with the necessary breathing room to focus on settlement without the pressure of strict litigation deadlines. However, to prevent abuse, any party who considers that this suspension is being abused may apply to the court for its upliftment. The mediation process is typically required to be concluded within 30 days from the date of signature of the joint minute. A Judge or the court may, upon good cause shown by the parties, extend this time period for completion of the mediation session.

CONFIDENTIALITY DURING MEDIATION

One of the key principles of mediation is its confidentiality. Unless the law provides otherwise, the court allows it, or both sides agree, anything shared during mediation, whether oral or written, must remain confidential and can’t be used as evidence in court of law. Furthermore, no offer or tender made without prejudice during mediation can be disclosed to the court at any time before judgment has been given. This rule encourages people to speak openly and honestly, which makes it easier to find a solution everyone can live with.

CONCLUSION OF MEDIATION AND ITS CONSEQUENCES

Upon the completion of mediation, the parties who engaged in mediation must inform the registrar and all other parties by notice that mediation has been completed. Even if the parties fail to deliver this notice, the suspension of time limits automatically lapses 30 days from the date of signature of the joint minute, unless a Judge or court has extended the time limit and notice of such order has been given within five days. If mediation concludes before the 30-day period, the parties must deliver the notice of completion.

Within five days of the conclusion of mediation, the parties who engaged in mediation and the mediator must issue a joint minute indicating:

• Whether a full or partial settlement was reached, or if mediation was not successful.
• The issues upon which agreement was reached, and which therefore do not require a hearing by the court.

It is the joint responsibility of the parties who engaged in mediation to file this minute with the registrar. Where parties reach a settlement during mediation, the provisions of Rule 41 apply with necessary changes. Rule 41 allows any party to a settlement that has been reduced to writing and signed, but not carried out, to apply for judgment in terms thereof on at least five days’ notice to all interested parties. This ensures that agreements reached through mediation are legally enforceable.

COSTS OF MEDIATION

Unless the parties agree otherwise, the fees of a mediator are to be borne equally by all parties participating in the mediation. This equal distribution promotes fair access to the mediation process.

CONCLUSION

Rule 41A plays an important role in making mediation a formal part of South African court procedures. It requires parties to consider mediation early in a case, allows timeframes to be paused while it’s underway, and keeps all communications during mediation private. It also lays out clear steps for starting and ending mediation. The goal is to help parties reach friendly and fair solutions without going through lengthy court battles. This not only lowers costs for those involved but also reduces pressure on the courts and encourages outcomes that better suit each situation.