Uniform Rule 41A, the obligation to mediate.

By P Garayi 010 592 2321
What is Mediation?
  1. It is a process where a “mediator facilitates communication between the parties concerning the matters in dispute and explores the possible solutions to promote reconciliation, understanding and settlement.” Thus, “settlement” is only one of the purposes of mediation.
  2. When it comes to family matters “Reconciliation” does not mean “getting back together.” It means helping the parties negotiate a workable way of living apart.
  3. In general, mediation is an alternative dispute resolution mechanism whereby parties appoint a neutral, qualified third party to facilitate a settlement ( mediator). It is seen as a more realistic approach, giving an independent professional the scope to test the dispute against reality. The parties, not the mediator, make the decision, the mediator has no power to render a decision or to force the parties to accept a settlement. This is because the voluntary settlement that the parties reach is designed by the parties themselves, it is more likely to be carried out without the need for external enforcement or further litigation. 
What is the mediation process stipulated in terms of Uniform Rule 41A?
4. As of the 9th of March 2020,parties to litigation matters are now required to consider mediation in terms of High Court Rule 41A.
5. Litigation as we used to know it has recently become something of the past, with mediation becoming one of the main dispute resolution mechanism mainly within family law matters. The coming into effect of High Court Uniform Rule 41A has changed how normal litigation will be done. This rule is a type of reform, putting mediation in the spotlight when it comes to general litigation matters but more so on family matters. It is believed that the rule stands to change the South African litigation system dramatically as mediation is the mainstream mechanism for resolving disputes, as Rule 41A has come into effect. 3
6. With rule 41A coming into effect, it means that in 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 serve a notice indicating whether they agree or oppose referral of the dispute to mediation. These notices must state the reasons for each party’s belief that the dispute is or is not capable of being mediated. The parties may, in any event, at any stage before judgment is granted, refer the matter to mediation, provided that where a trial or opposed application has commenced, the leave of the court is required.
7. The parties will be required to deliver a joint minute, recording their agreement to refer the dispute to mediation. However, time limits to deliver pleadings will be suspended whilst mediation is in progress. In instances where multiple parties are involved in the litigation process and some parties proceed to mediation, while others do not, will be possible.
8. Issues relating to the admissibility and confidentiality of documents will be taken into consideration. At the end of it all a joint minute indicating the outcome of the mediation must be submitted.
9. In as much as one can say the Rule is mainly being targeted at family law matters, its application may extend to all disputes before the High Court and it appears that its is not limited to a specific type of dispute, at this stage.
10. The rule will not make mediation compulsory. It is instead a mechanism to facilitate mediation proceedings which havebeen accepted/agreed to by the parties or mediation which has been recommended by the court. If the Rule was meant to force parties into mediation, it would most probably result into a largely unsuccessful dispute resolution mechanism and a waste of time and money.
11. The approval of this rule means South Africa is now following international trends and is requires a practising attorney to declare before court that they have advised their clients to consider mediation as an option to resolve the dispute. If they don’t, they could be penalised with costs orders. 
How implementation of Rule 41A will work:
12. where Parties agreed to make use of this route – it works as follows :
a. A notice, indicating a party’s decision regarding whether he or she opts for mediation or not, must accompany the summons or notice of motion, when delivering it to the other party.
b. This notice must clearly set out the party’s reasons as to why mediation will be suitable (or not).
c. Parties may agree to refer their dispute to mediation at any stage before judgment is given.
d. It should be kept in mind that the court may also, in terms of Rule 37A, direct the parties to consider that the matter be referred to mediation.
e. Once the parties have agreed to refer their dispute to mediation, the mentioned joint minute must be in place, recording their mutual decision.
f. The mediation process starts on the signatory date of the joint minute.
g. The mediation must be concluded within 30 (thirty) days after the date of the signature of the minute. However, the Judge of the court does have the discretion to extend the period if necessary.
h. If the dispute has been resolved by the mediation proceedings, a settlement agreement must be drafted, and should be in accordance with Rule 82.
i). The settlement agreement should include the following:
i. Proper and correct citing of the parties involved.
ii. Where necessary, confirmation that the signatories have the authority to conclude the agreement.
iii. A clear and precise indication whether the dispute was settled as a whole, or alternatively, which part(s) have been settled.
iv. What the settlement amount is and whom it is payable to including banking details ( this can be kept confidential by inserting a confidential clause)
v. Issues relating to who is liable for legal costs should be included.
j. Once the settlement agreement has been drawn up and signed, it should be made an order of court, ensuring the enforceability of the agreement. Thus, confirming that the legal proceedings are being settled fully and finally (if that is the case).
k. If the dispute was resolved as a whole by the settlement agreement, the parties should ensure that the legal proceedings are properly dealt with – meaning that they will have to, for example, withdraw the initial action on the basis of settlement. 
What is the impact of this Rule?
13. The mediation process and nature of the concept is far more informal, less intimidating, more affordable, time effective and is more accessible for all. However , this does not mean that the outcome of a successful mediation (a settlement agreement) has less power as you are able to submit the settlement agreement to the High Court to be made an order of the court which ensures that the agreement will be fully enforceable.
14. This will save costs, reduce the burden on the court system and, where there is a probable ongoing relationship, hopefully salvage what is left of it.
15. However, in some cases it’s not an option, as some matters need to go to court to be tested, as they set precedents and create legal certainty.
16. It has a more positive impact in family matters e.g. divorces where relationships must be preserved especially if children are involved.
17. Furthermore, unless provided by law, or discoverable in terms of the rules of court, or agreed between the parties, all communications and disclosures, whether oral or written, made at mediation proceedings, shall be confidential and inadmissible in evidence.

Disclaimer: This Note does not constitute, nor should be construed as, the giving of legal advice and it is recommended that one of our attorneys is contacted 010 592 2321