Changes to High Court Rules : Mediation a must- Uniform Court Rule 41A.

Mediation a must- Uniform Court Rule 41A

On the 9^th March 2020, Uniform Court Rule 41A came into effect and is applied to all High Courts in South Africa.

This new Rule introduces mediation as a pre-litigation step.

Mediation is defined in the Rule as a voluntary process entered into by agreement between litigating parties in which an impartial and independent person assists the parties, through negotiations, to either resolve their dispute or generate options to do so, identity the issues which can be agreed on, explore areas of compromise or clarify the parties priorities.

Essentially, the Rule requires that before a party seeks to embark on any Action or any Application in any High Court of South Africa, the party must deliver a notice to their opponent affording them an opportunity to agree to referral of the matter to mediation or oppose the referral thereof, with valid reasons of course. The Rule applies to urgent applications as well.

The opponent must then deliver their notice with their appearance to defend or oppose the matter, indicating whether they agree to the referral of the matter to mediation or whether they oppose the referral thereof, with valid reasons.

Mediation will commence if the parties agree to the referral or if a Judge refers the matter to mediation. This can be done at any time before the hearing of the Trial or Opposed Motion.

If a matter is referred to mediation, the parties must sign a joint minute recording the decision to mediate and enter into an agreement to mediate before the proceedings commence. The mediation process then commences on date of signature of the joint minute and will proceed for a maximum period of 30 days. It is evident from this that the agreement must be entered into before mediation proceedings commence and before the joint minute is signed.

During the mediation process, all time periods relating to the delivery of pleadings, notices or any further steps in terms of the Uniform Rules are suspended for the duration of the mediation. If one of the parties believe that the suspension of the time periods have been abused by the other party, the aggrieved party may apply to Court to have the suspension uplifted. If mediation does not concluded within the 30 days, then the parties can, on good cause shown, apply to Court to have the period extended.

On conclusion of the mediation process, the parties shall inform the Registrar of the relevant Court that the mediation process has concluded. Thereafter, and within five days of conclusion thereof, all parties to the mediation (including the mediator) must sign a joint minute indicating whether the mediation was fully or partially successful, whether there was full or partial settlement and if there are any issued which are agreed between the parties and which need not be heard by the Court. These joint minutes are then filed with the Registrar of Court and if the matter is settled by way of mediation, then Uniform Rule 41 must be followed regarding settlement.

It must be noted that the Notice which the parties exchange to initiate mediation proceedings remains without prejudice until the issue of costs of the action or application is adjudicated on but must be served with the Summons or Notice of Motion, as the case may be.All communications and disclosures made at mediation are confidential and inadmissible in evidence.If an offer or tender is made during mediation and is made without prejudice, then it cannot be disclosed to Court at any time before judgment in matter is handed down.

For most litigants, this new Rule comes as a relief to litigation. Parties are now given the option attempt to resolve matters outside of Court without engaging in frivolous litigation just to settle the matter two years later at the steps of Court on the day of Trial.

However, as this Rule is relatively new, it possesses various loopholes that may be abused by potential litigants and/ or their legal representatives. The Rule fails to provide a time limit for the signing of the joint minutes to commence mediation, which is an example of a loophole that can be abused to delay the matter. Further, the recourse of bringing an Application to Court to uplift the suspended time will result in further cost and time delay implications. All that remains to see is how the case law will develop this Rule further and hopefully curb any abuse by practitioners of the Court.