By Mapula Sedutla
Approximately seven years of hard work has culminated in the Rules Board for Courts of Law celebrating the launch of its Mediation Pilot Project, which will see the introduction of mandatory mediation in civil court matters. The chairperson of the Rules Board, Justice Bess Nkabinde, said this when she opened the evening’s programme at the launch of the project in Magaliesburg, Gauteng in December. Other speakers at the event included Deputy Minister of the Department of Justice and Constitutional Development Andries Nel, who was the keynote speaker, and Daryl Burman, a representative of the attorneys’ profession.
Chief director and secretary to the Rules Board, Raj Daya, later explained that the move to court-based mediation meant that attempts to resolve a litigious case via mediation would no longer be voluntary, but would be a compulsory step in the litigation process. The Rules Board issued a draft set of rules for the envisaged court-based mediation late last year. The rules provide that when a civil matter before court is opposed, it will be referred to mediation. Parties who refuse to participate in this mediation process face punitive costs orders.
Mr Daya said that court-based mediation would achieve the following benefits in access to and administration of justice in the civil justice system:
At the launch, Justice Nkabinde expanded on some of the benefits of court-based mediation. She said that a challenge was that the adversarial system was dominated by those whose services were not equally available to all segments of society. ‘Despite our glorified Constitution, certain interest groups have easier access to use litigation to defend their rights and advance their interests, while others cannot. It is thus not surprising that the Ministry of Justice has identified a project regarding court-based mediation. This was met with scepticism and resistance from different groups. After extensive research and debate, the Rules Board has now formulated and approved mediation rules. Fundamentally these rules seek to advance access to justice and to reduce litigation costs and delays in the resolution of disputes between litigants. They seek to encourage peace between litigants without having to fight in court. As former Chief Justice Pius Langa once said: “Changing mindsets should not just happen in a court room, parliament or government. It is indispensible to our society because if there is no reconciliation amongst ourselves and those who surround us, we will simply have changed the material conditions and the legal culture of society remains fractured and divided by bitterness and hate”.’
Justice Nkabinde concluded her address by thanking members of the legal profession for their contribution. She said the board would not have optimally achieved what it was mandated to do had it not been for their contribution and support.
Deputy Minister Nel used the opportunity of the launch to highlight some of the significant announcements and interventions that were made in 2011 concerning the administration of justice. He said that at the 2011 Access to Justice Conference the Minister of Justice reaffirmed the importance for alternative dispute resolution to be introduced into the civil justice system to enhance access to justice.
Mr Burman said that the attorneys’ profession associated itself with the principles of the initiative of the Rules Board and offered support from three major levels, namely –
Mr Burman said that the draft rules represent a radical departure from the adversarial system in South Africa. There are many techniques for intervening in a conflict dispute, the most notable being mediation, he said, adding that countries such as Canada and Australia have provided for a prohibition on matters such as domestic matters not being heard by a trial court unless the parties had attended some sessions by court-appointed and court-paid skilled mediators.
‘Mediation can take litigants from a lose-lose to a win-win situation. The people in the dispute voluntarily agree to participate, which makes them concentrate on their best interests rather than enforcing their rights. An independent and skilled third person intervenes in the dispute on a private and confidential basis. This can assist the parties so that they themselves can achieve the least expensive and creative result without either of them losing face,’ Mr Burman said. He suggested that mediators should be paid by the state so as to not to cripple the poor with additional costs, and that the parties should also have the option of appointing their choice of mediator at their own cost.
Mr Daya told De Rebus that the pilot project would be rolled out in the next couple of months. ‘The Mediation Pilot Project will introduce mandatory mediation into civil court proceedings, within a controlled environment. The pilot project will be conducted from selected High Courts, regional courts and magistrates’ courts throughout the country and its implementation will be carefully monitored. The identified courts will be gazetted by the Minister. The project is expected to be rolled out from April 2012. The interpretation of statistics gained from the project will enable the Department of Justice to assess difficulties in and responses to the process by court users, and thereafter develop and perfect the process. The outcomes of the pilot project will enable the Department of Justice to extend court-based mediation to all courts thereafter,’ said Mr Daya.
Mr Daya said that the draft rules were sent to stakeholders for comment and input and, once these were received, the draft rules were amended. The Rules Board then approved the amended draft rules and presented them to the Deputy Minister of Justice and Constitutional Development and the Minister approved them as working rules for the pilot project. The rules will be available in final operational form for the pilot project to commence, but will be amended based on the outcomes of the pilot project.
Mr Daya further said that the project is part of a broader review of the civil justice system that will extend to both the magistrates’ courts and High Court rules. Review of the civil justice system was approved by cabinet on 5 May 2010 and includes, among other aspects, the introduction of alternative dispute resolution mechanisms, in particular mediation.
Mapula Sedutla, mapula@derebus.org.za
This article was first published in De Rebus in 2012 (Jan/Feb) DR 8.
