A Step Forward For Legal Reform – High Court Rule Amendment

Recently, the High Court of South Africa has undergone significant development by implementing a process that shifts the current nature of formal dispute resolution from adversarial to collaborative. Mediation is now an official part of the legal process, whereby every new action or application proceeding, the plaintiff or applicant is required to serve, along with the summons or notice of motion, a notice indicating whether the plaintiff or applicant agrees or opposes referral of the dispute to mediation. The defendant or respondent in turn is required to indicate, via the notice, whether they agree or oppose this process. This is an obligatory step, that requires both parties to clearly state their reasons for wanting to enter or oppose mediation, and failing to do so may result in a cost order against the deviating party. However, the parties may also at any stage during the trial or hearing, agree to refer the matter to mediation as long as judgment has not yet been granted.

In light of this, Rule 41A of the South African High Court Rules effected on 9 March 2020, can be viewed as an element of reform, elevating mediation as an effective dispute resolution mechanism.  This heralds changes into our predominantly litigious system, as this collaborative approach has now become the required mechanism for resolving disputes before reverting to court.

Mediation is a process whereby an independent and objective third party facilitates discussions between two or more disputing parties. The mediator assists the parties in ventilating their perspective of the dispute, identifying issues, generating solutions to the issues, and guiding the parties to a possible settlement. The mediation process and nature of the concept are far more informal, less intimidating, time, and cost-effective, and accessible to all. Even though this is an alternative to the strenuous and costly litigation process, the agreement reached is as binding. Agreements can also be made an order of the court where applicable and necessary.

Resolve and Change Systems (RACS) welcomes the recent development in the High Court Rules in terms of Mediation. RACS has vast experience not only in mediation but in the full scope of Alternative Dispute Resolution (ADR), which includes processes such as negotiations, round table discussions, facilitation, and shuttle diplomacy.

ADR has been central to the practice of RACS for more than 20 years. Some key mediation cases that RACS has been involved in include transport-related disputes in George municipality with regards to the roll-out of a bus integrated transport system in George, mediating between students and university management at Stellenbosch University, mediating at Elsenburg Agricultural College during the student unrest of 2016, organizational and labour related disputes at Cape Town University of Technology, as well as facilitating trust-building initiatives with coastal fishing communities initiated by the Sea Fisheries Development Fund.

Despite the significant benefits of this process, It has taken South Africa many years to completely recognize mediation as an official and effective mechanism in resolving disputes. Countries such as the USA, UK, Australia, and Ireland have taken progressive steps in this regard for years. Recent case law in the UK has set out that ADR should be strongly encouraged and prescribes when ADR is an appropriate mechanism. Although every Irish citizen has a constitutional right of access to the courts, it is estimated that in excess of 90% of civil actions commenced in the Irish courts are resolved via mediation.

RACS applauds this new evolution in our legal system not only as it is our specialty, but will finally bring much-needed relief to our South African Court rolls, create further access to justice for all, lower legal costs and create a constructive environment for dispute resolution.

As advocates for joint problem solving, non-adversarial processes are central to the practice of RACS. Prior to the announcement of the High Court, RACS had already established an Out of Court Settlement Practice. The vision at the core of our Out of Court Settlement Practice is to create a service that is cost-effective, needs and interests based, expedient, and time-sensitive, pragmatic, and procedural culminating in just, amicable and fair outcomes. The mission of this practice is to provide a vehicle that ensures that people are able to resolve disputes without being drawn into protracted adversarial processes that exhaust them financially, irrevocably destroys relationships, and strips them of the humanity and dignity. Apart from the positive offerings mentioned, our ADR process is problem-centered, which pushes us to strive as far as we can for win-win outcomes that are binding and sustainable.

Our practice has been resourced with specialists who are trained extensively in the methodology and ethos of mediation and joint problem-solving processes. Our panel is structured on the principle of diversity and the value of a multidisciplinary approach, consisting of specialists spanning the fields of litigation, psychology, public administration, education, human resources, and public labour law and human relations.

Our offices are open Monday to Friday and allow consultation bookings via telephone on 021 823 7668, and electronic via www.racs.org.za or info@racs.org.za.

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Wesley Levendal
Wesley Levendal