Rule 41A of the Uniform Rules of Court (“the Rule”) requires litigants to consider mediation prior to instituting an action or launching an application.
The Plaintiff/Applicant is compelled by Sub rule (2)(a) to serve a Notice in terms of Rule 41A, stating whether the Plaintiff/Applicant consents or opposes the matter to be referred for mediation. This notice needs to be filed prior to summons being issued or an application being launched.
The Defendant/Respondent is similarly compelled by Sub rule (2)(b) to serve a Notice in terms of Rule 41A stating whether the Defendant/Respondent consents or opposes the matter to be referred for mediation. This notice needs to be served prior to the filing of a Plea or Opposing papers.
It is to be noted that Sub Rule (2)(c) provides that the said notices have to be substantially in accordance with Form 27 of the First Schedule.
Sub rule (2)(d) states that the said notices shall not be filed with the Registrar of Court, since they are deemed to be without prejudice and will only be disclosed to the presiding Judge at the end of a trial.
It is to be noted that if the parties do not comply with the provisions of Rule 41A, they stand the risk of a cost order against them at the end of a trial. In this regard it is important to note the judgement handed down in Brownlee v Brownlee (2008/25274) where the court emphasised the importance of mediation in family law matters. The court emphasised the duty of parties to attempt mediation and also the obligation of the legal representatives to encourage their clients to attempt mediation prior to embarking on litigation at a high cost and possible delays. The judgment commended the qualities of mediation and also capped the fees of the legal representatives on both sides due to their failure to advise their client to attempt mediation earlier on. Although mediation was not found to be mandatory, the judge expressed his disapproval of the parties’ conduct by, in addition to capping their legal representatives’ legal fees, ordering that each party is to pay his/her own legal fees.
It is further to be noted that the Rule provides for a second step to be taken – it is not merely sufficient to only indicate the parties’ willingness to refer the matter for mediation, the matter (if indicated that the parties are willing to mediate) must formally be referred to mediation.
Sub rule (3) provides that the matter can at any stage of the proceedings be referred for mediation, but in the event of the trial having commenced, leave of court is required. Sub rule (3) provides a mechanism for referral to mediation, despite the provisions of Sub rule (2). Sub rule (3)(b) provides that a judge or a case management judge (Rule 37A) could direct the parties to give consideration to referring the matter to mediation.
Sub rules (4)(a) and (b) pave the way as to how the parties need to go about. The parties, as a first point of departure, should file a joint minute recording their commitment to refer the matter or any part thereof for mediation.
It is to be noted that in accordance with Sub rule (4)(c) the prescribed time limitations for filing of pleadings, notices and affidavits are suspended from the date of filing the above joint minute to conclusion of the mediation. A party, if convinced that the other is abusing the suspension, may approach the court to uplift the suspension.
Sub rule (4)(d) provides that the mediation has to be completed, whether successful or not, within 30 days of signature of the joint minute, unless good cause is shown to court to have the period extended.
Sub-rule (4)(b) provides that the parties should enter into a Mediation Agreement.
A mediation agreement usually records the Mediator’s duties, confidentiality, an undertaking by the parties to negotiate in good faith, terms of termination, how an agreement to be reached will be recorded, an agreement as to who will pay the cost of mediation and indemnity.
Once the mediation agreement has been signed by both parties, mediation will commence. It is important to note that mediation is a transparent process and all communication and disclosures, regardless of whether oral or in writing is confidential, unless otherwise provided for in terms of the Rules of Court.
There are various styles of mediation, which includes inter alia Facilitative, Evaluative and Transformative styles of mediation. Caucus mediation is often preferred, since the parties and their legal representatives will attend to mediation, creating a sense of security for parties who feel exposed.
Once mediation has been completed the parties and the mediator needs to inform the Registrar by Notice that the mediation process has been completed (Rule 7(a)). Rule 7(b) provides that if any party fails to inform the Registrar that the suspension of time limits will notwithstanding lapse, unless otherwise directed by court.
Sub rule (8)(b) provides that the parties and the mediator must file a joint minute within 5 days of conclusion of the mediation, indicating:
- Whether a full or partial settlement was reached, alternatively, if mediation was unsuccessful, and
- Whether the aspects on which an agreement has not been reached requires to be heard by the court.
Sub rule (8)(a) provides that the mediation will be regarded as having been complete within 30 days of signing the joint minute (Sub rule 4(a)). If the mediation is concluded prior to the lapsing of the 30-day period, then the parties may file a notice informing the court of such, to uplift the 30-day suspension of the time limits for the court process.
No offer or tender made without prejudice to the parties’ rights shall be disclosed to court prior to judgment being handed down (Sub rule (8)(d)).
Sub rule (8)(e) provides that Rule 41 applies mutatis mutandis in the event of the parties having reached settlement of the matter during mediation.
Sub rule (9)(a) deals with the parties’ liability to pay the fees of mediation in equal shares, unless agreed otherwise. Sub rule (9)(b) provides that when a cost order, in either an action proceeding or application proceeding, is considered, the court may have regard to the notices served in terms of Sub rule (2), or any offer/tender referred to in Sub rule (8)(d).
In conclusion – Not only is mediation encouraged by the court by introducing Rule 41A, it is also recommended by the judiciary and legal fraternity, as mediation is deemed to be the smarter option to that of litigation as it is widely acclaimed to be more cost effective, expedient and constructive for dispute resolution, especially in family law matters where it involves a continuing relationship between parties.
