CASE IN POINT | Department of Justice and Constitutional Development
by Judge Cassim Sardiwalla, Chairperson: Minister’s Advisory Committee on Mediation
Mediation Services to Reduce High Cost of Litigation
In recent years, there has been a slow movement away from the expensive, stressful and time-consuming legal system as being the way of settling most disputes. Instead, people have been taking advantage of different types of alternative dispute-resolution mechanisms, particularly mediation.
What is significant about mediation is that, underlying all the surface tensions and hurts, there are individuals who are at a point where they want resolution of a conflict and who need help but do not know where to find such help – and mediation provides such an answer.
At the research stage of the introduction of mediation in South Africa, the Committee of the Rules Board considered numerous regional and international jurisdictions that have proven that court-annexed mediation increases access to justice, supports and complements court reform and assists in alleviating backlogs, thereby reducing delays, managing caseloads and streamlining procedures to expedite case disposition.
The simplicity of the process by which disputes may be resolved using this system is of the greatest benefit to our society. Almost any dispute may be referred to mediation, including disputes relating to accidents, family matters, religious matters, building contracts and neighbour disputes, to mention but a few. Any individual, or company, may approach the mediation clerk at the designated mediation sites
and request the clerk to arrange for mediation on his or her behalf.
A form is completed by the clerk setting out the applicant’s case and this is then presented to the respondent with a request to mediate. The respondent, if in agreement to participate in the process, would agree to, and attend, a mediation meeting at which both parties, without any other assistance except that of the clerk, will have the process of mediation, as well as the costs and the obligations of the mediator, explained to them in detail.
Parties sign an agreement and, in the agreement, nominate a mediator who is trained and qualified to mediate in the dispute. Parties select a mediator of their choice from a list of mediators on a panel. A date is arranged and the mediation takes place privately between the parties and under the auspices of the mediator in a relaxed and reconciliatory environment. If the parties settle the dispute, an agreement is drafted and is then made an order of court. The effectiveness of this process is that the agreement that is entered into between the parties may be enforced through the courts if either party defaults.
This procedure has been streamlined to ensure maximum accessibility for the poorest of the poor in this country. The entire process should last not more than two months at the very most. It is cheap, in that parties share the costs equally at a tariff which is determined in a way that is similar to the legal aid tariff that prevails in this country. Parties also have the choice to determine the duration of the mediation. Depending on the dispute, the duration could be a month, a week, a day or just a few hours and is based on what the parties can afford.
The difference between the court system and this process is that parties control the pace of their own dispute-resolution mechanism through mediation as opposed to their attorneys and the magistrates, prosecutors and clerks of court who normally deal with the pace of litigation in the courts.
This is a pilot project in some North West and Gauteng Magistrates’ Courts. It will operate in Mmabatho, Temba, Potchefstroom, Johannesburg, Soweto, Randburg, Kagiso, Krugersdorp, Palmridge, Pretoria North, Soshanguve and Sebokeng. Experience derived from the first phase of the pilot project will inform the roll-out of the project to pilot sites in other provinces and, eventually, if the project proves successful, to all Magistrates’ Courts.
The mediation process is a less intimidating process in which parties can explore a range of options and have control of the decision in their case. It also provides an opportunity for the parties to express their views without fear that their legal rights will be comprised. The question that is often asked is: “What is the role of lawyers in this process?” Lawyers may attend if parties wish to bring their representative along to assist them, but at their own cost. The process of mediation is formulated in an easily understandable format to facilitate self-representation.
A number of attorneys have offered their services and, because of their respective skills, have been appointed as mediators on the panel determined by the Minister. In determining the nature and content of the Rules for Mediation, the Committee has taken into account the fact that mediation must be economical and fast, that the parties must perceive it to be fair, and that it must minimise the risk to the parties. This process has been finalised after extensive consultation with the public, the professions and various arbitration and mediation organisations.
The official launch of this project marks another significant step in the transformation of the justice system to make it both equitable and accessible.