A Litigant's Guide to Rule 41A


Litigant’s Guide to Mediation under Rule 41A

 

Mediation is defined[1] as a voluntary process entered into by agreement between the parties to a dispute[2], in which an impartial and independent person, the mediator, assists the parties to either:

  • resolve the dispute between them, or
  • identify issues upon which agreement can be reached, or
  • explore areas of compromise, or
  • generate options to resolve the dispute, or
  • clarify priorities,

by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.


There are two stages at which mediation can occur under Rule 41A:

  • When proceedings (action or application) are instituted:
    • In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.[3]
    • A defendant or respondent shall, when delivering a notice of intention to defend or a notice of intention to oppose, or at any time thereafter, but not later than the delivery of a plea or answering affidavit, serve on each plaintiff or applicant or the plaintiff's or applicant's attorneys, a notice indicating whether such defendant or respondent agrees to or opposes referral of the dispute to mediation.[4]
    • The notices referred to above shall be substantially in accordance with Form 27[5] and shall clearly and concisely indicate the reasons for such party's belief that the dispute is or is not capable of being mediated.[6]
    • Subject to the provisions of subrule 9(b) dealing with costs, the notices referred to in this subrule shall be of without prejudice and shall not be filed with the registrar.[7]


  • At any stage before judgment:
    • the parties may agree to refer the dispute between them to mediation: Provided that where the trial or opposed application has commenced the parties shall obtain the leave of the court.[8]
    • a Judge, or a Case Management Judge referred to in rule 37A, or the court may direct the parties to consider referral of a dispute to mediation, whereupon the parties may agree to refer the dispute to mediation.[9]


Where the parties agree to mediate and a dispute is referred to mediation-

  • the parties shall deliver a joint signed minute recording their election to refer the dispute to mediation;[10]
  • the parties will need to select a mediator, ensuring that the mediator is suitably accredited and experienced. The accrediting body is DiSAC (Dispute Settlement Accreditation Council) – www.disac.co.za. DiSAC accredits mediation service providers and maintains a register of accredited mediators and arbitrators. The parties may:
    • contact an accredited service provider to provide a list of suitable mediators;
    • contact a mediator directly, being sure to confirm accreditation and experience; or
    • contact DiSAC, which will upon request provide and/or confirm details of a specific practitioner’s qualifications and areas of expertise, and of his/her accreditation with DiSAC.
  • If the dispute being referred requires particular (eg: medical/financial/engineering) expertise, the parties may agree to appoint a co-mediator with the requisite knowledge;
  • the parties shall prior to the commencement of mediation proceedings enter into an agreement to mediate[11] with the selected mediator. Every mediator/mediation service provider has a standard agreement, which deals, inter alia, with the appointment of the mediator, terms of reference, an outline of the mediation process and fees;
  • the mediation proceedings may be scheduled as soon as all relevant parties and the mediator are available and may be conducted via an online platform such as ZOOM;\
  • the time limits prescribed by the Rules for the delivery of pleadings and notices and the filing of affidavits or the taking of any step shall be suspended for every party to the dispute from the date of signature of the minute to the time of conclusion of mediation: Provided that any party to the proceedings who considers that the suspension of the prescribed time limits is being abused, may apply to the court for the upliftment of the suspension of the prescribed time limits;[12] and
  • the process of mediation shall be concluded within 30 days from the date of signature of the minute: Provided that a Judge or the court may on good cause shown by the parties extend such time period for completion of the mediation session.[13]


Multiple Parties

  • In proceedings where there are multiple parties some of whom are agreeable to mediation and some of whom are not, parties who are agreeable to mediation may proceed to mediation notwithstanding any other party's refusal to mediate.[14]
  • The time limits prescribed for the delivery of pleadings and notices and the filing of affidavits or the taking of any step shall be suspended for every party from the date of signature of the minute to the time of conclusion of mediation by the parties who have elected to mediate: Provided that any party to the proceedings who considers that such suspension of time limits is being abused, may apply to the court for the upliftment of such suspension.[15]
  • In any matter where there are multiple issues, the parties may agree that some issues be referred to mediation and that the issues remaining in dispute may proceed to litigation.[16]
  • If any issue remains in dispute after mediation, the parties may proceed to litigation on such issue in dispute.[17]


Confidentiality

  • Except as provided by law, or discoverable in terms of the Rules or agreed between the parties, all communications and disclosures, whether oral or written, made at mediation proceedings shall be confidential and inadmissible in evidence.[18]
  • This allows the parties the freedom to explore possible solutions in good faith.


Conclusion of mediation

  • Upon conclusion of mediation the parties who engaged in mediation shall inform the registrar and all other parties by notice that mediation has been completed.[19]
  • Notwithstanding the failure of parties who have engaged in mediation to deliver the above notice, the suspension of the time limits shall lapse unless a Judge or a court has extended the time limit and notice thereof has been given to all parties to the proceedings within 5 days of such order.[20]
  • Mediation shall be deemed to be completed within 30 days from the date of signature of the joint minute, from which date the suspension of the time limits prescribed for the delivery of pleadings and notices and the filing of affidavits or the taking of any step shall lapse: Provided that where mediation is completed before the aforesaid period of 30 days, the parties who engaged in mediation shall deliver a notice indicating that mediation has been completed.[21]
  • The parties who engaged in mediation and the mediator who conducted the mediation shall within five days of the conclusion of mediation, issue a joint minute indicating-
  • whether full or partial settlement was reached or whether mediation was not successful; and
  • the issues upon which agreement was reached and which do not require hearing by the court.[22]
  • It shall be the joint responsibility of the parties who engaged in mediation to file with the registrar, the minute.[23]
  • No offer or tender made without prejudice in terms of the subrule shall be disclosed to the court at any time before judgment has been given.[24]
  • Where the parties have reached settlement at mediation proceedings the provisions of rule 41[25] shall apply mutatis mutandis.[26]

 

Costs 

  • Unless the parties agree otherwise, liability for the fees of a mediator shall be borne equally by the parties participating in mediation.[27]
  • When an order for costs of the action or application is considered, the court may have regard to the notices referred to in subrule (2) or any offer or tender referred to in subrule (8)(d) and any party shall be entitled to bring such notices or offer or tender to the attention of the court.[28]

 

Form 27
Notice of agreement or opposition to mediation

[Form 27added by GN R107 of 7 February 2020 (wef 9 March 2020).]


IN THE HIGH COURT OF SOUTH AFRICA


(............ DIVISION)


Case No ...................................


In the matter between:


Plaintiff/Applicant


And


Defendant/Respondent


Please take notice that the Plaintiff/Applicant/Defendant/Respondent agrees to/opposes the referral of this matter to mediation.


The Plaintiff/Applicant/Defendant/Respondent does so for the following reasons:


_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________

_____________________________________________________________________________


Dated at ________________ on this _______________ day of ___________________________





_______________________________

Plaintiff/Applicant/Attorney




Defendant/Respondent/Attorney




Address


To: The Registrar of the Court




 


[1] Rule 41A(1)

[2] The subject-matter of litigation between parties or an aspect thereof.

[3] Rule 41A(2)(a)

[4] Rule 41A(2)(b)

[5] See Form 27 as annexure hereto

[6] Rule 41A(2)(c)

[7] Rule 41A(2)(d)

[8] Rule 41A(3)(a)

[9] Rule 41A(3)(b)

[10] Rule 41A(4)(a)

[11] Rule 41A(4)(b)

[12] Rule 41A(4)(c)

[13] Rule 41A(4)(d)

[14] Rule 41A(5)(a)

[15] Rule 41A(5)(b)

[16] Rule 41A(5)(c)

[17] Rule 41A(5)(d)

[18] Rule 41A(6)

[19] Rule 41A(7)(a)

[20] Rule 41A(7)(b)

[21] Rule 41A(8)(a)

[22] Rule 41A(8)(b)

[23] Rule 41A(8)(c)

[24] Rule 41A(8)(d)

[25] 41(4) Unless such proceedings have been withdrawn, any party to a settlement which has been reduced to writing and signed by the parties or their legal representatives but which has not been carried out, may apply for judgment in terms thereof on at least five days' notice to all interested parties.

[26] Rule 41A(8)(e)

[27] Rule 41A(9)(a)

[28] Rule 41A(9)(b)