Draft Mediation Rules

June 11th, 2015
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1. Definitions

In these rules:

action’ means proceedings commenced by the issue of summons

‘alternative dispute resolution’ means a process other than formal litigation, in which a neutral person assists parties to litigation to resolve the dispute between them

‘deliver’ means to serve a document on the opposite party in litigation and to file with the clerk or registrar of the court

‘dispute’ means litigation between parties commenced by an action which is defended or by the bringing of an application, which is opposed

‘dispute resolution administrator’ means a person who administers and controls the alternative dispute resolution process and whose functions are set out in these rules

‘litigation’ means court proceedings commenced by action or application proceedings

‘mediation’ means the process by which a mediator assists the parties to litigation to resolve the dispute between them by facilitating discussions between the parties, by assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute.

‘mediator’ means a person selected from a panel, by a dispute resolution administrator, to mediate a dispute between parties to litigation.

‘Minister’ means the Minister of Justice and Constitutional Development

‘rules of court’ means the rules of court applicable to the High court and magistrates’ courts

2. Object of Rules

The object of these rules is to provide an alternative dispute resolution mechanism for parties to litigation to promote expeditious and cost effective resolution of the dispute between them, which would normally be adjudicated upon in a court of law following conventional litigation procedure, rules and time limits.

3. Mandatory referral to mediation

Whenever an appearance to defend is entered in action proceedings or a notice of intention to oppose is delivered in application proceedings, the clerk or registrar of the court must refer the dispute to a dispute resolution administrator to facilitate mediation of the dispute between the parties.

4. Referral to Mediation by court or parties

(1)  The court may at any time before the commencement of a trial or the hearing of an opposed application refer a matter to a dispute resolution administrator to facilitate mediation of the dispute between the parties

(2)  Any party to litigation may at any stage before the commencement of a trial or the hearing of an opposed application apply to court for the referral of dispute to mediation on such order as to costs as the court may deem appropriate.

5. Functions of dispute resolution administrator

(1)  The dispute resolution administrator must explain to the parties the purpose of alternative dispute resolution and the meaning and objectives of the mediation process.

(2)  The dispute resolution administrator must appoint a mediator to mediate the dispute between the parties, fix a date for mediation and inform the parties of the date that the mediation will be held.

(3)  The dispute resolution administrator must in consultation with the parties allocate a time within which the mediation of the dispute is to be completed.

(4)  The dispute resolution administrator must forward to the mediator a copy of the summons or application by which the litigation between the parties was commenced.

(5)  Upon a matter being referred to mediation and a settlement being reached by the parties, the dispute resolution administrator must, upon receipt of the settlement agreement from the mediator, place the settlement agreement before a judicial officer for noting that the matter has been settled.

(6)  In the event of the parties not being able to resolve the matter or conclude a settlement agreement where the matter has been referred to mediation, the dispute resolution administrator must upon receipt of a report from the mediator, refer the matter back to the clerk or registrar of the court to enable the matter to proceed as a defended action or opposed application.

6. Refusal of parties to submit to mediation

(1)  Notwithstanding the provisions of rule (3) any party to a dispute may refuse to submit to mediation referred to in that rule.

(2)  The dispute resolution administrator must explain to the party or parties refusing mediation of the consequences of refusal as provided for in these rules.

(3)  The dispute resolution administrator must record that a party or the parties have refused mediation and that the consequences of refusal have been explained to them.

(4)  The party or parties refusing mediation must sign the memorandum recording the refusal and the fact that the consequences of refusal have been explained.

(5)  Upon the refusal to submit to mediation by any party or parties the dispute resolution administrator must refer the matter to the clerk or registrar of the court, whereupon the matter may proceed as a defended action or opposed application.

(6)  At the trial of any action or the hearing of an opposed application where mediation was refused, should the court find that the refusal was unreasonable and that mediation may have resulted in substantially the same finding as the court, the court may make such order as to costs as it considers appropriate, against the party or parties that refused mediation.

7. Suspension of time limits pending mediation

The time limits prescribed by the rules of court for the delivery of pleadings and notices,the filing of affidavits or the taking of any step by any party are suspended during the period from the time a matter is referred to a dispute resolution administrator to time of the outcome of the mediation process.

8. Rules applicable to the Mediation process

(1)  At the commencement of any mediation session every mediator must inform the parties of the following:

(a)  the resolution of the dispute must be concluded within the time period allocated for that purposes, provided that the parties may by agreement in writing extend the time period;

(b)  the role of the mediator is aimed at facilitating a settlement between the parties in their best interests;

(c)  the mediator cannot make any findings of fact, credibility or law nor may the mediator make any decision for or against any of the parties;

(d)  in the event of a settlement being reached, the mediator will assist the parties in drafting the settlement agreement, which the mediator must transmit to the dispute resolution administrator of the court where the litigation was commenced;

(e)  all discussions held and disclosures made during a mediation session are of a without prejudice nature, are not binding upon the parties and are inadmissible as evidence in any court, tribunal or other forum unless reduced to writing as a settlement agreement and signed by them ;

(f)  the mediator may during the mediation session encourage the parties to make full disclosure if in the opinion of the mediator such disclosure may facilitate a resolution of the dispute between the parties;

(g)  no party may be compelled to make any disclosure, but a party may make voluntary disclosures with the same protection referred to in sub paragraph (e) above;

(2)  No party is permitted to produce at a mediation session any evidence, provided that the mediator may in his or her discretion call for evidence that may promote a resolution of the dispute.

(3)  If a dispute is resolved between the parties the mediator must assist the parties in settling the terms of the settlement and reducing the agreement to writing, which must be signed by the parties.

(4)  Thereafter the mediator must transmit the original settlement agreement to the dispute resolution administrator of the court from which the dispute was referred for mediation.

(5)  In every mediation process the mediator must within five (5) days of the conclusion of the mediation process submit a report of the outcome of the mediation to the dispute resolution administrator.

9. Settlement Agreements

A settlement agreement concluded between parties at mediation proceedings must be made an order of court of the court in which the litigation commenced.

10. Fees of Mediators

(1)  The fees payable to mediators are prescribed in the table in Annexure A to these rules.

(2)  The parties participating in the mediation process must pay the mediator’s fees.

(3)  The liability of a party for the fees of the mediator must be proportionate to the number of parties participating in the mediation process.

11. Representation of parties at Mediation Proceedings

(1)  Parties to mediation proceedings must attend such proceedings in person and may be accompanied by legal representatives.

(2)  The parties’ legal representatives cannot participate in the mediation proceedings and must not interfere with, delay or obstruct the continuity and conclusion of the proceedings.

(3)  Where the State, an organ of state or any Provincial or Local Government is a party to mediation proceedings such entity must be represented by an official who must be duly authorized to represent the entity and to conclude a settlement and sign a settlement agreement on behalf of such entity.

12. Qualification and appointment of Mediators

(1)  The qualification and standards of fitness of Mediators for the purposes of these rules must be determined by the Minister.

(2)  The Minister may periodically appoint Mediators to serve on a Panel of Mediators to execute the functions and objectives ascribed in these rules.

13. Application of rules

(1)  These rules will apply to such courts as the Minister may determine.

(2)  These rules do not replace any of the rules of the High Court or the Magistrates’ courts, which must continue to apply either before commencement of or after the conclusion of mediation proceedings.

(3)  These rules will come into operation on a date to be determined by the Minister and for such period or periods as the Minister may determine

14. Short title

These rules will be referred to as the Mediation Rules of the High Courts or the Magistrates’ Courts, dependent upon the courts to which the Minister determines they are to apply.

[ Version : 11 October 2011 ]

 

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