Me diation

Intr oduction:
Mediation is a form of alternative dispute resolution. It offers parties with a speedy resolution that is
considerably cheaper than litigation. It is cheaper because it is resolved within a short period of time. It
also provides parties with a win-win situation. It is flexible and can avoid a lot of technicalities that are
included in litigation. They are voluntary, but in certain situations (like credit agreements) it can be
stated that ADR must be attended before litigation can be instituted. It promotes reconciliation and they
can conduct this in their own language – in the courts all proceedings must be recorded in English and
has the help of a translator. Matters can be like contractual claims, damage claims, family disputes,
neighborhood disputes and some divorce matters. Parties can approach a mediator themselves, but
when there is a pending matter the clerk will assist in appointing a mediator. All will have to undergo
mediation training and some specialize in certain disputes. There are institutions that offer these
courses (such as the Legal Practice Council). The time it takes depends on the type of matter, some can
be dealt with in a day, some need more days or even weeks.
Mediation is a structured, interactive process where an impartial third party neutrally assists disputing
parties in resolving conflict through the use of specialized communication and negotiation techniques.
All participants in mediation are encouraged to actively participate in the process.
When will mediation not be used? Where parties are unable to represent own interest, client wants
court precedent, one party is likely to go insolvent, favorable court judgement is likely

Where does mediation fit into the traditional dispute resolution in South Africa?
Mediation has a long history in South Africa. This concept emphasizes a community building, respect,
sharing, empathy, tolerance, common good and acts of kindness. This usual process was interrupted
by colonialism where adjudication was introduced. In the past mediation was mostly found in
employment dispute resolutions through the Labour Relations Act 1995, which established the CCMA
that outlined that disputes needed to be taken to this commission before adjudication could be
instituted.

There are various statutes that provide for mediation as an alternative dispute resolution, such as; the
Constitution, the Children’s Act, Commission of Gender Equality Act, Consumer Protection Act, Estate
Agency Affairs Act, Extension of Security of Tenure Act, Health Professions Act, Higher Education Act,
Human Rights Commission Act, Labour Relations Act and the Land Reform Act.

What happens when a positive outcome has been reached, but one party does not comply with the ir
par t?
If it is an order of court, it can be enforced. If not, it is still legally binding and has the same power as a
contract and have the same consequences and remedies available.

Limitations of litigation:
It is slow and expensive.
The outcomes are unpredictable.
Delay in outcomes.
It is backward looking (mediation is forward looking and focuses on maintaining or restoring the
relationship).
It can harm the relationship between the parties.
Not everyone has access to this as it costs so much.
Public and subject to public dialogue.

T ype of consensus seeking pr ocesses:

Negotiation
Positional negotiation – trying to overpower the other party to get a favorable outcome
Interest based negotiation – separates the people from the problem and focuses on creating
value and ultimate outcome to be favorable to both parties instead of their positions thy hold.
Mediation
Facilitative – concern is to set in place a process set in place for parties to negotiate and agree,
they will not give opinion
Transformative – to assist and transform parties’ relationship, it is focused on the relationship and not
the issue, often used in family or work disputes
Evaluative – plays a more active role and is usually an expert in the matter and may attempt to
persuade the parties to accept an outcome.

Conciliation – a process in which parties request a third party (get rest from recording)

Char acter istics of mediation:

Voluntary
Flexible and informal
Confidentiality
Without prejudice
Mediator is impartial, neutral and independent from the process
Mediator control the process
Parties determine the content and outcome of the dispute
Benefits of mediation

Me diation

Mediation is a process by which a mediator assists a party in a legal dispute by facilitating the
discussion between them, assisting them in identifying the issues, exploring areas of compromise,
generating options in attempt to resolve the dispute and it is an alternative to having the dispute
resolved in Court.

Advantages of Mediation:
o It is a speedy resolution
o It is significantly cheaper than ligation
o It provides a win-win situation for both parties
o the process is flexible and avoids technicalities
o It is a voluntary process
o It promotes reconciliation
o Parties are allowed to use their own language

Most disputes are appropriate for mediation as long as the courts has jurisdiction in r e spe ct of the
matter
o Examples:
Contractual Claims
Motor vehicle Collisions and Other damage claims
Neighborhood disputes
Family disputes

Who will be the mediator ?

o the mediator will be a person that the parties choose, with the help of the mediation clerk, from a
panel
o All mediators has undergone mediator training
o Some mediators specialises in particular types of matters (e.g., Family disputes)
o the clerk will advise you which of the mediators are appropriate for your dispute.
This will depend on factors such as area of practice and experience.
 Can mediation be used wher e litigation has al r e ady comme nce d?
o Yes, mediation can be used where litigation has already commenced.
o A matter can be referred for mediations at any stage during the court process before a judgment has
been given

How long does the pr ocess of mediations take ?

o the process of mediation varies from matter to matter
o A simple dispute can often be resolved in a few days where as a more complex dispute will take a
few weeks

What happens in an event where mediation has resulted in a positive outcome, but one of the parties
fails to comply with their agr eement?
o If the mediation agreement has been made an order of court, then it can be enforced through the
sheriff of the court in the same way as any order of any civil court.
o If it has not been made an order of court then it is enforceable in law in the same way as any other
legal binding agreement

T he limitation of litigation
o It is slow and expensive
o It has an unpredictable outcome
o the decision maker is limited to the pleadings, the dispute referral and the rule of law
o There is a delay in outcomes
o It is backward looking
It does not look to the future, specifically in respect of the relationship between the parties
o Litigation may cause more harm to the relationship between the parties
o the cost involved may deprive a party from access justice
o It places a financial and administrative burden on the state
o Court litigation is public and subject to public dialogue

T ypes of Consensus seeking pr ocesses

1 . Negotiation
This is the primary form of consensus seeking and is the most effective method to resolve disputes
It often happens without the parties knowing that they are negotiating
The two primary approaches to negotiation are:
i. P ositional Negotiation
o This is where each side focuses on a formally stated position
o The process is characterised by attempts to justify positions, haderling between parties and
concessions to middle ground
o This approach encourages parties to adopt extreme positions at the outset to make small
concessions and focus on tactics aimed at applying and handling pressure to improve the
results
Typical tactics include: misrepresenting positions or interests, withholding material
information, making threats or bluffing, staging a walk-out, use of power, making
concessions only in return for reciprocal concessions, making small concessions slowly,
hadling to a point of compromise
These tactics can undermine relationships and can breakdown trust

ii. Inter est based Negotiation

o This was developed as an alternative to positional negotiation
o The key elements of interest-based negotiation are:
Separating people from the problems
Focusing on interest and not positions
Generating a variety of options to choose from
Focuses on creating value in the negotiations
 It insists on using objective standards where possible
o The process is characterised by problem-solving rather than bargaining
o The objective is to create more valuable outcomes
o It focuses on underlying interests, needs, fears and concerns.

2 . Mediation
Mediation is a flexible process conducted confidentiality in which a neutral person actively assist
parties in working towards a negotiated agreement of a dispute or difference, with the parties in
ultimate control of the decision to settle and the terms of the resolution.

T he cor e components of mediations ar e :

o The parties to a dispute
o A third parting assisting
o And that the ultimate outcome is to resolve the dispute and sign an agreement

Cir cumstances wher e mediations will be e ncour age d:

o When courts cannot provide the relief sort by the parties
o Where the parties wish to settle promptly
o Where the parties wish to minimize cost
o Voluntary compliance is desirable
o Where parties which to avoid a court precedent
o Where parties had difficulty in negotiating
o Where parties lack negotiation skills
o Where parties assess facts differently
o Where parties have a continuous relationship
o And where parties want to maintain confidentiality

Cir cumstances in wher e mediation doe s not wor k:

o Where the parties cannot represent their own interest
o Where parties are adamant and deny liability
o Where one party is likely to go insolvent
o Favourable court judgment where one of the parties
o Where it is not possible to conduct the mediation without the discovery of documents which
one of the parties is prepared to disclose
o Where mediation has reached the stage where the parties can negotiate on their own without
the intervention of a mediator

T hr ee common styles and models of me diation:

I. F acilitative
o The concern of the mediator is to set in place and manage a process designed to
assist the parties to negotiate an agreeable outcome
o The mediator will not give his opinion
o The mediator will focus on the process best suited to achieve the outcome

II. T r ansfor mative

o This is used to assist and transform the relationship between the parties rather than
the dispute
o It is commonly used for family disputes and work place disputes
o The mediator encourages the parties to talk to each other

III. Evaluative
o Here, the mediator is much more active and is a expert on the matter
o The mediator may give advice and recommendation
o The mediator may evaluate strength and weaknesses of the party
 o The mediator may persuade parties to accept a particular outcome.
o This style is often used in South African building and constructions industries.

3 . Conciliation
This is another term used for mediation
It refer to a process where parties request a third party to assist them in an attempt to reach an
amicable settlement for their dispute arising out of or relating to a contract or a legal dispute.

4 . Other dispute r esolution pr ocesses

There are a wide range of binding and non-binding processes which involves the intervention of a
third party to assist in resolving a dispute.
Other r ight or iented pr ocesse s with bounding outcome s ar e :
o Mediation or ar bitr ation
- A technique used to resolve disputes – refer the matter to arbitration and parties
agree to be bound by the decision

o Judicial Appr aisal

- Party writes a submission to the judge who gives their appraisal of the likely
outcome of the matter and whether the matter should go to court
- Parties decide if the appraisal is binding or not – if binding then no deviations may
be made from the appraisal
- Example: Get an opinion from an advocate, which will tell you what the chances of
success in a certain matter should it proceed to court

o Ex per t deter mination

- Party writes a submission to the judge who gives their appraisal of the likely
outcome of the matter and whether the matter should go to court
- Parties decide if the appraisal is binding or not – if binding then no deviations may
be made from the appraisal
- Example: Get an opinion from an advocate, which will tell you what the chances of
success in a certain matter should it proceed to court

P r ocesses with non-binding outcomes, that is determined by a thir d par ty, which ar e r ight-base d
or ientated and consensus based ar e:
o non-binding arbitration - same as arbitration however the decision of the arbitrator is not
binding upon the parties

o Ombudsman services - appointed by the government or by parliament, but with a significant

degree of independence, who is charged with representing the interests of the public by
investigating and addressing complaints

o Neutral fact binding - a process where a neutral 3rd party [selected by either the court or the
parties] investigates the issue and reports/testifies in court about his findings

o Executive tribunal or mini trial - a confidential, non-binding exchange of information to

facilitate a settlement [a more elaborate version of early neutral evaluation]

o Facilitation

o Early neutral evaluation - a neutral person with specialist knowledge is invited to evaluate the
case, issue or dispute
Char acter istics of Mediation
1. Voluntariness
Attending and the process of mediation should at all times be a voluntary process.
Parties must be allowed to engage freely
o Should the parties be given this option; they will be highly motivated to resolve the dispute
There are, however, instances where mediation forms part of a contract or by way of a court order
and therefore might not be voluntary in its initiation but the continuance is generally voluntary.
The settlement agreement, that the parties reach, must also be a voluntary one

2. Flexible and informal

The mediation is flexible but it is also structured and informal
The parties decided who attends, issues for discussion, and when and how the session is to be held.
Whatever has been agreed upon, in terms of structure, can be changed as the process evolves.
Mediation is flexible compared to court proceedings.
Flexibility makes the process more user friendly and less stressful than litigation

3. Confidentiality
The mediation process is conducted confidentially and privately between the parties and the
mediator.
There are two levels of confidentiality:
o Level 1
The process is private and confidential – Whatever is discussed between the parties will
remain confidential and the outcome can only be made public if both parties agree
o Level 2
This level is crucial
This is confidentiality between the mediator and the parties – the mediator may not pass
information obtained from one party, during a private session, to another party, without his/
her consent
Reassurances of confidentiality must be given to the parties by the mediator before the process starts.
Before closing of a private session, the mediator must obtain permission from the one party to
disclose certain information to the other, and vis versa.
There are limits to the protection of confidentiality, in the event of past or future criminal conduct,
threat of life, health or safety.

4. General (Without prejudice, Impartiality, neutrality and independence of mediator, mediator controls,
parties determine outcome)
It takes place without prejudice
In mediation parties do not give up their right to resort to litigation or continue litigation if the dispute
is not resolved.
Mediation should be viewed as a process that can be pursued as a part of an overall dispute
resolution strategy in order to obtain the most effective outcome for both parties.
No concession or offer made during the process or information disclosed can be used as evidence in
a court of law or any other process

The mediator at all time must remain impartial, neutral and independent from the process
The mediator must give balanced attention to both parties, in order to assist the process
The mediator is not appointed as a judge, but rather as a process facilitator
The mediator does not express his views on the merits or makes suggestions about the outcome
The mediator may have views, but he must distant himself and demonstrate neutrality
The mediator might have expertise in the field, of the issue is dispute.
These skills must be used to assist the parties to explore the options rather than to influence the
outcome.
 The mediator controls/manages the process: The plans the process before it begins and continues
with process making decisions as the session progresses
The mediator can decide to work with the parties in joint sessions or private sessions.
The mediator will seek to seek to secure ongoing cooperation of the parties

As the mediator is control of the process, the parties are in control of and determine the content and
outcome of the dispute. They are in control of the decision to settle.
In mediation the parties are involved in the process as opposed to litigation where lawyers and
judicial offers control the process.
The outcome of litigation is dependent on the case put before the court by the lawyers and the
witnesses and this is largely out of control of the parties. This is different in mediation.
Central to mediation is that the parties remain the decision makers
Mediations plays a big role in facilitating the negotiations, assisting parties to overcome deadlock but
the parties will not be bound to anything, unless an agreement has been concluded between them

T he benefits of mediations:
o It has a relatively high success rate
o It has highly levels of compliance with terms of settlement agreements
o cost saving
o time saving
o optimal terms of settling
o opportunity for creativity
o satisfaction of the parties
o It encourages the parties to look forward rather than into the past.
o It preserves on going relationships
o Confidentiality
o Experienced third party
o The process gives parties the opportunity to speak their mind and express their emotion
o The opportunity to secure your settlement is reached
o A final and certain outcome of the dispute.

Mediation and Justice

Mediation and Justice has been motivated, in part, as a response to the concerns of access to justice.
There, however, are a few concerns that have been raised. The introduction of mediation pushes the
financially weak members of society into a second-class dispute resolution system because they cannot
afford the cost of asserting their rights in the court system. This, however, has an effect on poor or weak
parties where they may feel that they are compelled to accept a settlement agreement with
unfavourable terms. Parties might feel pressurised into a settlement and compromise on the terms
where there are time constraints and financial constraints.

Mediation and the Legal P r ofession

Arrival of mediation has significant consequences for lawyers
Changes in role of lawyers in dispute resolutions not always comfortable
Process leads to a decrease in litigation stats
Process involves new and different skills

T ypical Mediation P r ocess

Step 1: Pre-mediation
o This takes place before the mediation day.
o This is when the mediator makes telephonic contact with the parties or their respective representatives
(This based on a prior agreement of the parties to mediate).
o The purpose of this contact is to prepare, identify obstacles and deal with any admin matters.
o Pre-mediation contact is used to achieve the following:
To check that the terms of the agreement, to mediate, has been finalised
To explain the process
To explain how parties might prepare
To deal with the issues relating to the exchange of mediations statements or documents prior
to the mediation
To explain the requirements for the opening statement
To check on authority that the parties have.
To identify any other parties with an interest
And to check the language requirements.

Step 2: Opening the proceedings

o Here, the mediator greets the parties and explains any housekeeping rules
o The mediator checks for signature of the agreement and also explains the opening statements

Step 3: Exploration Stage

o This step generally happens in private sessions.
o In these private session, the parties can discuss any issues with the mediator that they do not want to
disclose to the other party
o The purpose of this is to create a safe and confidential environment.
o The use hereof is to the discretion of the mediator.
o The disadvantage is that one party might gain more time with the mediator and the other party might
feel offended.

Step 4: Exploring and Analysing the dispute

o The purpose is for the mediator to gain a full and proper understanding of the dispute and the
position and needs of the parties

Step 5: Generating Options

o The Purpose is to assist the parties to develop, consider and come up with a wide and creative range
of options that will be available to them to agree on
o It is to identify possible outcomes that meets the respective needs of either party.

Step 6: choosing options.

o Here, the parties will choose an option and they will then negotiation there on
o The purpose of this stage is to assist the parties to bargain and agree to solutions that are practical,
cost effective and maximises mutual satisfaction of the parties

Step 7: Finalising agreement/ confirming deadlock

o Where the parties have come to an agreement, the mediator will assist them with finalising their
agreement
o Where the parties were unable to come to an agreement, the mediator will then confirm a deadlock
o The purpose is to assist the parties to read and understand the agreement or define the difference
between them for any future purposes

Step 8: Following up after mediation

o After the mediation has been completed, and it was a success, the purpose is to hear by the parties
whether or not the mediations agreement has been successfully implemented.
o This is also an opportunity for the mediator to receive feedback on his mediation performance.
o This can be pone telephonically and is usually followed up with a questionnaire.
Cour t – Annex ed Mediation

Backgr ound:
The Magistrates Courts are the courts of first instance to the public. In terms of the Magistrate Courts
Act 1944 read with the Magistrates’ Court Rules (“the Rules”), these courts have the jurisdiction to hear,
various types of actions and applications pertaining to inter alia, contractual and delictual disputes.
The Magistrate Court is further granted specific jurisdiction to house inter alia the Small Claims Court,
the Family Court, the Maintenance Court and Equality Court.
These specialist courts all operate as Magistrate Courts, each having their own empowering legislation.
Mediation was first introduced in the Magistrate courts by the Short Process Courts and Mediation in
Certain Civil Cases Act 103 of 1991. The Act and the rules provided for:
(1) The ordinary magistrate courts, opposed to specialist courts and (2) a new species of court
created by the Act called the Short Process Court.

The Act failed to expressly define mediation, the methodology and / or the ethical and formal duties of
the mediator. The Act made significant strides in recognising alternatives to litigation yet it failed to
appreciate the true character of mediation.
The problems with Act 103 of 1991 formed part of the mandate of the Civil Justice reform Project
which was approved in 2010 by Cabinet to transform the civil justice system to enhance access to
justice.
This initiative to introduce mediation into our court system gained further momentum with the resolution
of the Access to Justice Conference held in July 2011 to introduce alternative dispute resolution
mechanisms preferably, via court-annexed mediation.

AMENDMENT OF MAG IST RAT E COURT RULES - MEDIAT ION RULES

The Rules Board for courts of Law approved by the Minister of Justice and Constitutional Development
in terms of the Rules Board of Courts of Law Act 107 of 1985, amended the Rules regulating the
conduct of proceedings of the Magistrate Courts of South Africa by inserting Chapter 2 into the Rules.
The Rules are applicable in courts in a schedule published by the Minister of Justice and Constitutional
Development. This amendment created the framework for court-annexed mediation.

WHAT IS COURT ANNEXED MEDIAT ION?

It is a process by which a mediator appointed pursuant to Chapter 2 of the Rules assists the parties in a
legal dispute by:
i) Facilitating discussions between the parties – mediator is a facilitator and doesn’t have a vested
interest in the matter [unlike attorneys]
ii) Assisting them in identifying issues – mediators don’t force their will onto the parties
iii) Exploring areas of compromise – mediator analyses whether the parties interests are in conflict
with each other
• Tries to uncover the real interests of the parties
• Test issues and compromises against the various solutions available
iv) Generating options in an attempt to resolve the dispute -- Doesn’t tell the parties what to do –
merely provides alternative solutions or outcomes for the parties that both of them can live with
v) Mediation is an alternative to having the dispute resolved in court
• If mediation isn’t successful = litigation is still an option
• There is a movement away from litigation = cost and time effective and issues are truly
understood between the parties

Mediation does not deal with status matters [only minor issues such as family law disputes] – usually
where there are pre-existing relationships involved
A mediator is not a lawyer – mediators go through a specific training course

Mediator is chosen according to the dispute at hand

• Building dispute = get a mediator that is an expert in the building field
CAM has been implemented in lowers courts – voluntary process – parties may leave mediation
whenever they want to
• Mediation usually takes place within 2 – 3 days
Some parties use mediation as an attempt to test the strength of their case against the other party –
trade secrets would be exposed

COURT – ANNEXED MEDIAT ION – G OV ERNMENT G AZET T E 3 7 4 4 8 ON 1 8 MARCH 2 0 1 4

The rules were published in Government Gazette 37448 on 18 March 2014 and they provide the
procedure for the voluntary submission of civil disputes to mediation in selected courts.
The rules apply to the voluntary submission by parties to mediation of disputes prior to commencement
of litigation (Rule 77); and disputes in litigation which have already commenced. (Rule 78 and 79)
The amendment to the Rules essentially saw the insertion of Rule 70-87 and annexure 3 with mediation
forms 1-15.

The Rules are voluntary in nature -- to make court-annexed mediation compulsory would require the
passing of legislation in the form of an act of Parliament.

NAT URE OF MEDIAT ION P ROCESS

There are four entry points to access court annexed mediation;

(a) Rule 77 Any party may at any stage refer a dispute to mediation prior to the commencement of
litigation.

(b) Rule 78 Any party may at any stage after litigation has commenced, but before trial, request the
clerk of the court, in writing, to refer a dispute to mediation.

(c) Rule 75(1)(b) If the trial has commenced but a judgement has not yet been made any party may
apply to court to refer the dispute to mediation.

(d) Rule 79 A court may request parties to consider mediation during the course of litigation but prior to
judgment being delivered.

MEDIAT ION BEF ORE ISSUING OF SUMMONS - RULE 7 7

Presumably if an informal approach by one party to the other was unsuccessful, the party wishing to
mediate may apply in writing on Form MED-1 (RULE 77(1) & (2)), setting out the nature of the dispute
and identifying potential party /parties to the clerk of the relevant court.

The clerk of the court will send an invitation to the Respondent to engage in mediation by using Form
MED-2 (Rule 77(3). The clerk will essentially:
1 Contact all potential parties within 10 Days to see if mediation can be agreed;
2 Request parties to and attendance at a meeting;
3 Explain before or at that meeting the nature and purpose of the mediation;
4 Explain the costs;

FORM MED-1 APPLICATION FOR REFFERAL TO MEDIATION

FORM MED-2 INVITATION TO MEDIATION

If the mediation is agreed the court officer will:

1 Attempt to get consensus on the mediator to be appointed, and in default of agreement,
appoint a panel mediator;
2 Arrange for the parties to sign a mediation agreement;
3 Appoint the mediator and arrange for a date and time for the mediation;
4 Forward, within 10 days of the signing of the mediation agreement to the mediator all relevant
documents relating to the dispute;
MEDIATION AFTER PROCEEDINGS HAVE BEEN ISSUED (RULE 78(1))
The process is similar however the Rules empower the court on its own motion to refer the matter to
mediation. The forms in the event that litigation has commenced is FORM MED-3 and FORM MED -4.

FORM MED-3 APPLICATION FOR REFFERAL TO MEDIATION

FORM MED-4 INVITATION TO MEDIATION

EXT RACT OF IMP ORT ANT RULES

(a) RULE 75 - REFERRAL TO MEDIATION
The parties may refer a dispute to mediation. In terms of Rule 75(2) a judicial officer may at any time
after the commencement of litigation, but before judgment, enquire into the possibility of mediation of
a dispute and accord the parties an opportunity to refer the dispute to mediation.

(b) RULE 79 - REFERRAL TO MEDIATION BY COURT

(c) RULE 80 – ROLE AND FUNCTIONS OF MEDIATOR

Defines the steps to be taken by the mediator once a dispute has been referred
(d) RULE 81 – SUSPENSION OF TIME LIMITS
The rule appears to create a stay of proceedings. Importantly mediation does not interrupt prescription.

(e) RULE 84 - FEES FOR MEDIATORS

There are no court fees, but the mediator is entitled to charge a fee according to a fixed tariff. The
parties contribute equally to this fee, which must be paid before the mediation commences.

(f) RULE 85 - REPRESENTATION OF PARTIES AT MEDIATION PROCEEDINGS

The parties have the right to be represented by legal representatives, but this is not obligatory. Par ties
who are represented will be responsible for the fees of their legal practitioners.

IMP LEMENT AT AT ION OF COURT – ANNEXED MEDIAT ION RULES

Gauteng and North West Province were identified as the two pilot provinces for the implementation of
the mediation project.
The implementation of court-annexed mediation was officially launched in North West Province in
Mafikeng on 16 February 2015.
The Justice Department has appointed Clerks of Courts to manage requests for Mediation in twelve
courts in the Gauteng and the North West Provinces.
The Magistrate Courts identified in Gauteng include Johannesburg, Protea, Randburg, Krugersdorp,
Kagiso, Palm Ridge, Pretoria North and Soshanguve.
In the North West the sites identified include Mmabatho, Temba and Potchestroom.
The mediation pilot project will be rolled out to further pilot sites in due course.

G ener al:
Court based mediation applies the same principles as your typical mediation process. The only
difference is that court-based mediation is attached to a court proceeding. Thus, there must have been
a court process that has commenced in order for you to rely on court-based mediation.

Step 1: Request for mediation

o There are 5 ways in which a mediation can be requested.
1. A party can refer a dispute to mediation prior to litigation. This is done by written request to the clerk
or registrar to indicate whether he/she is claiming relief or whether relief is being claimed against
him/her and to provide details about the nature of the facts of the dispute
2. At any time during litigation but before trial request that the matter be refer to mediation
3. After the commencement of the trial but before judgment. A party can apply to the court to refer the
matter to mediation
4. Prior to, or during the trial but before judgment a court can enquire into the possibility of mediation
5. The parties can consent and request that the court refer the matter to mediation.

Step 2: Meeting to Mediate

o Once the mediations has been requested, the clerk or registrar will ask all parties attend a meeting
within 10 days of the request.
o The clerk or registrar will explain the mediations process and its benefits
o The clerk or registrar will explain to the parties that they are equally liable for the costs
o The parties may appoint their own legal representative to assist at the mediation
o And after being informed of their benefits, their right to legal representatives, and cost, the parties
can decide whether or not to proceed with the mediation

Step 3: Drafting a mediation agreement

o Once the parties have agreed to mediate, before commencing litigation, the clerk or registrar
appoints a mediator by agreement and sets a date, time and venue.
o The clerk will also assist the parties to draft an agreement that must be signed by all parties
o The agreement must include: The name, address, email address of all parties, a statement that they
have agrees to mediate as well as the date time and venue of the mediation, the name of the mediator
and the time period allocated to the mediation session.

Step 4: Statement of Claim and Statement of defence

o In an action procedure: It will be your summons and you particulars of claim and your plea and
counter claim.
o In an application procedure: It will be your notice of motion and replying affidavit
o A party claiming relief must lodge a statement of claim with a clerk or registrar and copies must be
sent to all parties.
o The party to whom relief is being claimed must lodge a statement of defence.
o In action matter, the summons or declaration and plea will serve as the above statements
o In application matters, the founding affidavit and answering affidavit will serve as those statements

Step 5: The mediation session

o The mediator must inform the parties of his or her functions as a mediator and his rights and
responsibilities. He must objectively facilitate the settlement, be impartial and inform the parties of the
rules and mediate in an inquisitorial manner. He must encourage the parties to make full disclosures.
Anything that is said orally or in writing is confidential and cannot be used in a court of law as evidence
unless it has been recorded in a settlement agreement

Step 6: Finalising the dispute and drafting the settlement agreement

o If the dispute is resolved the mediators will assist the parties in drafting the settlement agreement.
o The agreement must be in writing and signed by all parties
o The agreement must be sent to the clerk or the registrar
o Where the dispute is not resolved, the mediator must send a report to the clerk and the report will be
filed and the parties may continue with their litigation process.

Benefits of Cour t-Annex ed Mediation

It improves the communication and understanding between parties.
Litigation will still remain an option and the partied will still hold the right to resume with ligation.
Mediation will allow the parties to have a say and be heard, for the first time in the entire dispute.
Most parties will be motivated by having their day in court. A mediation setting will provide both
parties with an equal opportunity to state his/her side of the case.
It will identify settlement blockages
There is a risk assessment. The mediators will sometimes do a 8reality check9 with the reluctant
party, exploring the consequences and risk of failure to settle. This is a powerful mechanism as it
provides an independent, unbiased review of the case….????? Likelihood of success.
 Mediation also gets the decision makers involved. So standard practice in civil and commercial
mediation is that the parties to the process must have the authority to settle, or at least be able to
obtain the necessary authority to conclude a deal. In this way mediation keeps the decision makers
informed of the strengths and weaknesses of their respective cases and of the advantages and
disadvantages of the failure to settle
The process is informal and flexible
The compliance rate is much higher – the reason for this is that the settlement will often conclusively
deal with the underlying issues and not merely the positions adopted by the party. Additionally, it is
because of its problem-solving nature
Mediation leaves parties with a sense that they have arrived at a fair outcome through a process that
is conducive to the building rather than the destruction of relationship.

In summation
Mediation is going to become an important part of court process. This is to avoid unnecessary
litigation, where matters can be settled.
Courts have already started practicing mediation in many matters (e.g., Divorce matters where
attorneys attempt to settle and trial is a last resort)
It is important to understand that there is no difference between a typical mediation process and the
court-based mediation process.
The only difference here is the different steps, however, there are still a lot of similarities.
With court-based mediation, there must be a court process attached to it.
Thus, there must already be a pending application or an action proceeding that has already processed
or commenced and now parties want to attend mediation. Whereas your typical mediation process can
be used in any day-today matters and in any types of cases before the parties attempt to approach the
court.

Implications of cour t-based mediation for busine ss:

Court based mediation will affect the dispute resolution strategy of a business in many ways, including;
- Preparation for mediation is very different from preparing for litigation
- Because the timing of mediation is only dependent on the availability of the parties
and the mediator, decision-making around legal strategy will have to be expedited
- The mediators’ terms of reference need to be determined and the following
answered;

Implications for lawyer s:

Legal representatives view alternative forms of dispute resolution with suspicion.
However, the benefits for their clients are self-evident.
In order to avoid seeing ADR methods as a challenge, lawyers ought to learn about mediation, perhaps
equip themselves with the skills, and find creative ways of generating decent fees from the process.
Because mediation is a speedy process, it can increase cash flow and enhance the lawyer’s reputation
with clients, who want certainty and cost-effective solutions.
Lawyers can opt to broaden their scope of practice by acquiring ADR skills in conjunction with litigation
as part of their practice.

F r equently asked questions about mediation:

[1 ] WILL T HE MEDIAT OR T ELL T HE P ART IES WHO IS RIG HT AND WHO IS WRONG ?
No, a mediator does not judge the parties or tell them what the solution to their dispute is. It is for them
to find a solution that meets their needs and interests. The task of the mediator is to assist them to do
this.
The mediator will help them to identify the real issues and explore different options for resolving those
issues. The mediator assists them, using skills acquired through training and experience, to diffuse
conflict and explore options for settlement.
If the parties reach agreement the mediator will assist them to draft a settlement agreement. The
settlement agreement is enforceable in law as a contract. It can be given additional strength by having
it made an order of court, if the parties agree to this.
If the parties are unable to settle their dispute through mediation, then they may still resort to litigation
and adjudication.

[2 ] DO I NEED T O BE REP RESENT ED BY A LAWYER?

No, parties have the right to be represented if they want to be, but this is not obligatory. Parties who
are represented will be responsible for the fees of their legal practitioners.
It is the task of the mediator to ensure a fair and structured process with a level playing field,
irrespective of whether parties are represented by lawyers or not. Parties can also request that a friend
or family member be allowed to be present during the mediation to lend support.

[3 ] CAN MEDIAT ION BE USED WHERE LIT IG AT ION HAS ALREADY COMMENCED?
Yes, matters can be referred for mediation at any stage during the court process before a judgement
has been given.

[4 ] HOW LONG DOES T HE P ROCESS OF MEDIAT ION T A K E P LACE?

Simple disputes can often be resolved within a few days. More complex disputes may take a few weeks.

[5 ] WHAT HAPPENS IN AN EVENT WHERE MEDIATION HAS RESULTED IN A P OSITIVE OUTCOME BUT
ONE OF THE PARTIES LATER FAILS TO COMPLY WITH THEIR AGREEMENT?
If the agreement has been made an order of the court, then it can be enforced through the Sheriff of
the Court in the same way as any order of a civil court. If it has not been made an order of the court,
then it is enforceable in the law in the same way as any other legal binding agreement.

[6 ] WHAT IS MEDIAT ION?

It is a process by which a mediator assists the parties in a legal dispute by:
• Facilitating discussions between the parties.
• Assisting them in identifying issues.
• Exploring areas of compromise.
• Generating options in an attempt to resolve the dispute.
Mediation is an alternative to having the dispute resolved in court.

[7 ] BENEF IT S OF MEDIAT ION

• It offers speedy resolution of disputes.
• It is considerably cheaper than litigation.
• It provides a win-win situation for both parties in a dispute.
• The process is flexible and avoids technicalities.
• It is a voluntary process.
• It promotes reconciliation.
• Parties can use their own languages.

[8 ] WHERE DO I G O F OR MEDIAT ION S ERV ICES ?

You approach the mediation clerk in the Civil Section at the Magistrate’s Court which has jurisdiction in
respect of the dispute.
The clerk will arrange for the parties to attend a meeting to assess whether their dispute can be
submitted to a mediator.
Mediation will be rendered at dedicated rooms identified as Therisano Centres.
[9 ] WHAT MAT T ERS CAN BE REF ERRED F OR MEDIAT ION
Most disputes are appropriate for mediation, as long as the court has jurisdiction in respect of the
matter.
Examples are contractual claims; motor vehicle collision and other damages claims; neighbourhood
disputes and family disputes.

[1 0 ] WILL T HERE BE COURT F EES?

There are no court fees, but the mediator is entitled to charge a fee according to a fixed tariff. The
parties contribute equally to this fee, which must be paid before the mediation commences.

[1 1 ] WHO WILL BE T HE MEDIAT OR?

The mediator will be a person that the parties choose, with the help of the mediation clerk, from a
panel of accredited mediators appointed by the Minister of Justice and Correctional Services.
All mediators have undergone mediation training. Some specialise in particular types of matters, such
as family disputes. The clerk will advise you as to which of the mediators is appropriate for your
dispute, depending on factors such as area of practice and experience.

[1 2 ] WILL T HE MEDIAT OR BE A LAWYER?

Not necessarily. Many mediators are lawyers, but they may also be experts from other professions.
For example, engineers are often mediators in building construction disputes. Family disputes are often
mediated by social workers or psychologists