Amongst the ways of resolving disputes, particularly divorces, between parties, is mediation which stands out as one of the few alternative dispute resolution methods that have the potential to save one time and costs. This is because some methods of dispute resolution such as litigation, and even arbitration, involve protracted and often expensive proceedings, which are fraught with legal and technical hurdles that may hinder the speedy and cost efficient resolution of the dispute. Added to that, it is not uncommon in litigation for a party, despite having good prospects on matters of substance, to have their matter thrown out owing to non-adherence with key procedures.
The above however, should not be taken to insinuate that mediation is without its own requirements that must be complied with. It is important at this point to mention that parties may provide for their own mediation process, for example, under a contract or a mediation agreement. On the other hand, Rule 41A of the Uniform Rules of the High Court provides for a mediation process for all new actions and applications brought before the Court. The plaintiff or applicant must deliver a notice declaring whether mediation has been considered, whether they are amenable to enter into mediation and if not, the reasons thereof. On the other hand, the defendant or respondent ought to give notice thereafter on whether they agree to enter into mediation and if not, the reasons on which their decision is premised.
In the event that parties have agreed to enter into a mediation process, the following must be complied with:
- An agreement to mediate which provides for inter alia, who the mediator is, costs of mediation, costs of the mediator, where and when the mediation will take place;
- A record of minutes of the decision to mediate;
- A minute recording on whether a settlement has been reached or not.
Despite the rule above, in the matter of Nedbank Limited v Wesley Groenewald Families Trust And Others (2021) JOL 50593 (FB), the plaintiff applied for summary judgment to which the defendant opposed, citing that the plaintiff had failed to comply with rule 41A. In response, the plaintiff argued that in its plea, the defendant had also failed to file their notice before their plea. Consequently, neither party complied with the rule. Similarly in MN v SN [2020] ZAWCHC 157, the Court was not prepared to uphold the objection of non-compliance with Rule 41A.
Mediation has been recognised as an alternative dispute resolution process by our courts for a long time, mainly due to its attendant benefits. During litigation (both in actions and applications) a lot of pleadings are exchanged before the dispute is finally determined by the Court. Costs mount as long as the points of disputation remain unresolved. In contrast, mediation does not involve the exchange of numerous pleadings, and usually has a timeframe within which it must be concluded, parties can therefore take control of costs and time in this manner.
Matters that may be mediated include commercial disputes, employment and labour law, family law, divorce, maintenance, primary care and contact of minor children, property transactions, sectional title Body Corporate disputes, Home Owners Association disputes and insolvency law etc.
Added to rule 41A as aforementioned, there are some provisions of the law which require compulsory mediation in certain matters. An example is the Mediation in Certain Divorce Matters Act of 1987, which requires that where married parents of minor children divorce, a Family Advocate report detailing the best interests of the minor children must be sought. However, to the extent that this Act does not require such a report where unmarried parents of a minor child separate, it was declared unconstitutional in the matter of ST v BN And Another [2022] ZAGPJHC 374 (2 February 2022).
In conclusion, it is noteworthy to mention that the very object behind the promulgation of such a provision (41A of the Uniform Rules of the High Court) is the understanding that mediation provides immense benefits as an alternative to litigation in terms of dispute resolution.
We are available to assist parties in the process of mediation, thereby saving them time and saving them costs. Contact us for comprehensive assistance.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal advisor for specific and detailed advice. Errors and omissions excepted (E&OE).
