As many of you might know, litigation can become costly, especially if the parties are unable to reach settlement and the matter goes to trial. It also tends to be a lengthy process, as you could be waiting months, if not years before you get your day in Court due to the massive backlog of cases in the judicial system. 

On 9 March 2020, the not so new Rule 41A of the Uniform Rules of Court of South Africa came into effect. The aim of the rule is to reduce the backlog of cases in the judicial system and promote alternative dispute resolution mechanisms by encouraging litigants to consider mediation. 

The Rule requires a Plaintiff/Applicant in every new Action or Application to serve a Notice on the Defendant/Respondent together with the Summons or Notice of Motion, indicating whether such Plaintiff/Applicant agrees to or opposes the dispute being referred to mediation.

So, what is mediation?

Meditation is a completely voluntary process entered into by agreement between the parties to a dispute. It is a structured process, facilitated by an independent, impartial third party (the mediator) to assist the parties to either resolve the dispute between them or to identify issues on which agreement can be reached and where the parties are willing to compromise.

It is a confidential, Without Prejudice process, meaning that if the parties can’t resolve their dispute in mediation, nothing that was disclosed during mediation can later be used in Court.

If the dispute is resolved or an agreement reached, same is recorded by the Mediator, signed by the parties and becomes legally binding on the parties. Should either party want to enforce the agreement, they would need to approach the Court. 

What are the benefits of mediation?

• Mediation can be faster and cheaper than litigation;
• It reduces the number of cases that end up in Court thus relieving the burden on the judicial system;
• It promotes reconciliation as it requires compromise that can be a win-win solution for both parties instead of an “all or nothing” win or lose outcome;
• It is a more flexible process than litigation and avoids technicalities and unnecessary delays;
• Mediation tends to be a less adversarial way to resolve disputes and can therefore preserve the relationship between the parties; and
• Mediation can be conducted remotely, avoiding unnecessary costs of travelling, and other inconveniences to the parties.

Embracing mediation as an alternative to litigation can alleviate the strain on the Courts, reduce delays and costs, and enhance access to justice. This shift towards a more proactive and collaborative approach reflects not only the changing dynamics within South Africa, but also aligns with the broader continental trend towards embracing alternative dispute resolution mechanisms. 

For more information on alternative dispute resolution mechanisms kindly contact our offices or send us an email to Kate Barnard (Family and Commercial attorney at Webb Attorneys; kate@webbinc.law).