Time for South Africa to embrace multi-tiered dispute settlement and for legal practitioners to become dynamic, multi-faceted dispute managers?

The amendment of Rule 41 of the Uniform Rules of the High Court with the introduction of Rule 41A has been a long time coming and signals a significant evolution of our legal system from a ‘one size fits all’ litigation space to a multi-tiered paradigm in which disputants and their representatives may utilize a dispute mechanism most suited to their specific needs.

In terms of the amendment, and as of 9 March 2020, parties are required to consider mediation for every new matter instituted in a High Court of South Africa.

This presents practitioners with an opportunity to engage with clients in a different way and shift from a ‘rights-based’ approach to an approach that focuses also on interests and needs.

Litigation is a process which provides for the assertion of one parties’ rights over the other and, like arbitration, calls upon an adjudicator to determine which party that is, applying the law to the facts.

Mediation opens up a new space for clients and their representatives to explore not only a client’s rights, but also their interests and needs in a collaborative way with the other side. The mediator is merely the facilitator of this collaboration and not a decision maker so the parties retain the power over the outcome. The aim of a mediation process is for the parties to find a mutually acceptable outcome, which may extend beyond the remedies available in a court or other adjudicative tribunal. This allows for flexibility and creativity in finding solutions based on a future scenario rather than being limited to a prescribed remedy based on past conduct as is the case with litigation or arbitration. Another important aspect is that written or oral communications and disclosures between the parties or their representatives, in the mediation process are confidential and inadmissible as evidence so may not be used or referred to should the matter not resolve. Parties are also free to abandon the process at any stage and resume the litigation. If unable to resolve the issues in dispute, the mediation process affords parties the opportunity to agree certain issues and narrow the issue in dispute, allowing for a more focused litigation process to follow.

Throw into the mix conciliation, facilitation and arbitration and a practitioner has a spectrum of tools and mechanisms available to achieve a best result for their client. These tools must not be seen in isolation and are all able to fit together in a complementary ‘multi-tiered’ way – in any sequence that appears optimal. This gives a representative an opportunity to effectively and efficiently design a dispute system for their client, including whichever mechanism is best suited to the particular dispute. This may be arbitration that shifts to mediation or vice-versa. It may be conciliation that shifts to arbitration that then shifts to mediation. In the High Court at the moment, the dispute system being encouraged is mediation and, failing resolution, litigation. This expands the role of representatives into a new space that is sophisticated and in which the skill of mediation advocacy - the technique of presenting and arguing a client’s position, needs and interests in a non-adversarial and strategic way - becomes imperative.

The amendment of Rule 41 presents legal practitioners with the opportunity to acquire new, or hone existing, skills in a multi-faceted practice and to service clients in an effective and efficient manner within a multi-tiered system.

Michelle Posemann

Advocate, Commercial Mediator & Arbitrator

April 2020