By Nomfundo Manyathi-Jele
The Justice Department officially launched the court-annexed mediation in Mahikeng on 16 February.
The mediation service provides an alternative dispute resolution mechanism that allows for negotiated settlement between parties and alleviates litigation costs. When there is a dispute between parties, a mediator will facilitate discussions between them, assist in identifying issues and explore areas of compromise at a cheaper and fixed tariff.
At the launch, Justice Minister Michael Masutha explained that during the pilot phase of the programme, the focus will mainly be on civil and family disputes. Over time, the Justice Department will develop a legislative framework for the effective use of alternative dispute resolution for the resolution of certain criminal cases where appropriate.
During the pilot phase, mediation will be voluntary and the focus will be on disputes that fall under the jurisdiction of the district and regional courts, which are up to R 200 000 and R 400 000 respectively. However, the Magistrates’ Courts Act 32 of 1944 permits that parties may consent to a higher jurisdiction beyond the prescribed limits. ‘It is our hope that the pilot will culminate into a more rigid process whereby mediation could be compulsory and may extend to the disputes that fall within the jurisdiction of the High Courts,’ Minister Masutha said.
‘The overly regulated civil justice system coupled with the challenges facing the case flow management system contributes to the clogging of the court system. The average period for the finalisation of an opposed civil matter is two and a half years. In respect of Mahikeng districts it implies that the courts will only be able to process an average of 650 of the 2 576 civil and family law disputes registered between April and December 2014, thus leaving a balance of over 1 900 of the case backlog. The situation is dire in courts such as Johannesburg where on average 60 000 cases are registered on the court rolls every year,’ said Minister Masutha.
Minister Masutha said that the court-annexed mediation will also enable government to cut its ‘huge litigation bill by diverting claims against the state to mediation.’ He added that he will soon submit to Cabinet, a policy framework to facilitate the diversion of claims against the state to mediation across all spheres of government.
Mediators can be chosen from a panel of accredited mediators appointed by Minister Masutha. As of 6 March 2015, there was a total of 233 mediators. The names of the accredited mediators across various sectors, including the level of accreditation is available at www.justice.gov.za. Further names will be added as the advisory committee approves new applications. Applications from mediators in other provinces will be considered at a later stage, as the project is rolled out.
Court-annexed mediation step by step procedure
1 Go to the office of the mediation clerk at the court. Explain your problem to the clerk.
2 If mediation is possible, the clerk will assist you to fill in an application form.
3 The clerk will invite you and the other party to come to a meeting to discuss an agreement to mediate. At this meeting, the clerk will explain mediation. The parties sign a written agreement to mediate. The clerk will assist the parties to choose a mediator. The date and time of mediation will be agreed and fees paid according to a fixed tariff and shared equally by both parties.
4 The mediator and parties meet on a suitable date for a mediation session. The mediator explains the mediation rules and procedures. Each party tells their story. The mediator may ask questions. The mediator suggests solutions. Parties discuss what the best solution is.
5 An agreement is reached by the parties. The mediator helps parties to write an agreement. The agreement may be made an order of court if the parties wish to do so.
According to Government Gazette (GN 854 GG38163/31-10-2014), the mediator’s tariff of fees is as follows:
1 Perusal of documents, per page R 22 for a level 1 mediator and R 22 for level 2.
2 For every half hour or part thereof spent in mediation with parties or litigants to the dispute: Or any necessary witness R 225 and R 300 respectively.
3 Preparation of a report in terms of r 80(2), per hour R 450 and R 600.
4 Travelling from usual place of business to the mediation venue, per kilometre R 3 for both levels.
(a) The fee in item (2) above for a single mediation shall be subject to a maximum fee per day of:
(i) R 4 500 for a level 1 mediator; and
(ii) R 6 000 for a level 2 mediator.
(b) The fee in item (3) above shall be subject to a maximum fee of:
(i) R 1 350 for a level 1 mediator; and
(ii) R 1 800 for a level 2 mediator.
According to the Justice Department, the following are frequently asked questions among others:
Will the mediator be a lawyer?
Not necessarily. Many mediators are lawyers, which has the advantage that both parties can be informed what the law is relative to their dispute. Often mediators are experts from other professions, for instance engineers are often mediators in building construction disputes. Family disputes are often mediated by social workers or psychologists.
Will the mediator tell the parties who is right 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 an 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.
Can mediation be used where litigation has already commenced?
Yes, mediation can take place prior to litigation being commenced or during litigation, at any time before a judgment has been given. The parties can agree to refer to mediation or one party can request the clerk or registrar of the court to convene a meeting for the purpose of determining whether the matter should be submitted to mediation. The courtannexed mediation rules also provide that during the hearing of a matter a judicial officer can enquire whether the matter should be referred to mediation and give the parties an opportunity to consider this in consultation with the clerk or registrar.
How long does the process of mediation take?
Simple disputes can often be resolved within a few days. More complex disputes may take a few weeks.
What happens in an event where mediation has resulted in a positive 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.
Mediation is voluntary and a party may withdraw at any stage.
For more information contact the court-annexed mediation Project Office at –
• Tel: (012) 315 4615/6
• E-mail: mediation@justice.gov.za
Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.
This article was first published in De Rebus in 2015 (April) DR 11.
