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A Guide To the Mediation Process In South Africa
Mediation is now an increasingly and highly effective method in dispute resolution. As part of Alternative Dispute Resolution, Mediation provides parties with the opportunity to reach a common ground through a mutually beneficial avenue. This article will explore the definition of Mediation, the roles and functions of a Mediator, the advantages of Mediation in dispute resolution and the what the introduction of court-annexed Mediation means to parties wanting to commence legal action.
1. What is Mediation?
Mediation is where a certified Mediator, is appointed to guide parties in a dispute by assisting parties with communication in reaching a mutually beneficial decision in a fair manner. It is the alternative method available where parties want to confide in sharing information with the Mediator in a confidential manner.
2. What are the roles and functions of a Mediator?
- Clarifying disputes issues
- Enhancing communication between disputing parties
- Exploring potential solutions in reaching a mutually beneficial agreement
- Drafting Settlement Agreements
- Applying to court to make Settlement Agreements court orders
3. What are the advantages of Mediation?
- Flexibility
- Speedy dispute resolution
- Cost-effective
- Confidential
- Comprehensive and Customised Agreements
- Mutually Satisfactory Results
- Preservation of Relationships
4. What is Court-Annexed Mediation?
The court-annexed mediation rules have been introduced as part of the judiciary’s efforts to transform the civil justice system, by promoting access to justice and fairness in dispute resolution.
The cases which qualify for court-annexed mediation are the following:
- Civil – Personal Injury, Medical Malpractice, Defamation,
- Family – Maintenance, Division of Marital Property, Parental Rights and Responsibilities, Divorce, Wills and Estates
- Commercial – Contractual litigation, Compliance, Debt Recovery, Intellectual Property Disputes,
5. High Court Rule 41A and Magistrate Court Rule 72
The introduction of Rule 41A in terms of the Uniform Rules of Court and Rule 72 in terms of the Magistrate Court Rules formalizes mediation as a formal dispute resolution mechanism before parties commence with civil litigation. In this regard, Rule 41A and Rule 72 notices indicate the willingness to attempt mediation.
6. Mandatory Mediation and Protocol introduced in the Gauteng Division
A new directive has been issued in April 2025 from the Judge President of the Gauteng Division of the High Court, making mediation compulsory for civil trials, starting in 2027. This directive was implemented to enhance access to justice and ensure that matters going to trial have exhausted all possible dispute resolution avenues first.
7. The legal consequences where one party refuses to participate in the Mediation?
Court-Annexed Mediation is a voluntary process all parties need to participate in, and is highly encouraged. Non-compliance with these rules may have a de bonis propriis cost order brought against the non-cooperative party.
As a result, if a matter is not referred to mediation and the court finds that the costs incurred could have been avoided had the parties referred the matter to mediation, the court may choose not to award costs to the party which refused to refer the matter for mediation.
8. What are the possible outcomes of mediation?
- Full settlement – All disputed issues have been settled on.
- Partial settlement – Some of the disputed issued have been settled on.
- None Settlement – None of the disputed issued have been settled on.
9. Why choose Van Deventer and Van Deventer Incorporated?
Should a dispute arise or should an existing dispute fail to be resolved, our attorneys at Van Deventer and Van Deventer Incorporated are available to assist you in appointing a Mediator, negotiate with the disputing side, drafting settlement agreements and ensuring that you have the option in choosing a more beneficial dispute resolution process.