New rule puts mediation before litigation

FROM this week a new court rule requires that parties must consider mediation to try to resolve their disputes before taking a matter to court.

This follows an amendment by the Rules Board for Courts of Law.

The new rule, which was gazetted on February 7, came into effect on Monday.

The aim of the rule is to save costs and reduce the heavy burden already placed on the court system.

Advocate Jackie Nagtegaal, the managing director of the legal insurance brand Law For All, said there were many barriers that barred South Africans from turning to court.

These included the costs associated with lengthy court processes. This was why the rules board implemented an amendment that would push for mediation over litigation.

As from this week, the high courts will require those involved in a lawsuit to declare whether or not they have considered mediation as a solution to their dispute.

“It will also require attorneys to confirm whether they have advised clients to take the mediation route or not.

“Before the parties are allowed to go to court they must complete a Form 27, which requires a clear and concise description of the reasons why they believe the dispute is not capable of mediation,” she said.

The rule also gives judges the power to direct parties in dispute to first consider mediation. “This decision is in line with what’s happening internationally, especially in family related matters,” Nagtegaal said.

PJ Veldhuizen, the managing director of law firm Gillan and Veldhuizen, also a commercial mediator, said the rule would greatly help the congested court system.

He said mediation was considered a time- and cost-effective solution in which parties to a dispute could appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement.

The mediator facilitates discussions between the parties, assists them in identifying issues and generates options to resolve the dispute.