Step-by-step guide to mediation in the magistrate’s court
By Caitlin Askew
The magistrates’ courts are currently over-flowing with cases. Various disputes are brought before the courts on a daily basis. Attempts to get a trial date or a date on the roll can leave you waiting months before your matter is heard. In light of the above, the legislature has looked into ways in which we can reduce the amount of cases that go to trial, in essence, alternative dispute resolution. In December 2014, ch 2 of the magistrates’ courts rules came into operation providing an alternative to formal litigation, namely voluntary mediation in selected magistrates’ courts.
Mediation is the process whereby a third party, namely a mediator, assists the parties in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. This mediation process applies to parties in both actual and potential litigation. The main objectives of this mediation process is to facilitate discussions between the parties and to preserve the relationships between the parties that may become strained or destroyed through the adversarial nature of litigation.
A step-by-step practice note guideline follows:
Step 1: When to refer a matter to mediation
A matter can be referred to mediation before or after litigation but must be done before judgment is handed down. If the trial has commenced the parties must first obtain consent from the court to proceed with mediation. There is also a duty on judicial officers to inquire into the possibility of mediation and provide the parties the opportunity to refer the dispute to mediation.
Step 2: How to refer
Parties desiring to refer the matter to mediation, both prior to the commencement of litigation and during the commencement of litigation, must make a request in writing to the clerk of the court. The clerk of the court must inform all parties to the dispute that mediation is being sought and must call on all the parties to attend a conference within ten days, for the purpose of determining whether all or some of the parties agree to refer the dispute to mediation.
Step 3: Giving notice
Where the parties in the case of an intended action, have agreed to submit their dispute to mediation, one of the parties must notify the clerk of the court by means of the prescribed notice. Where the action has already been instituted, one of the parties must notify the court concerned through the prescribed notice. In an action that has already been instituted, the clerk will file the notice under the number assigned to the case in question and submit it to the court where the case originated and request the court to adjourn the dispute for mediation proceedings. A request for mediation can be considered in chambers, however, this is at the discretion of the adjudicator or magistrate.
Step 4: Appointment of mediator
The clerk, along with the parties must appoint a mediator. If consensus cannot be reached, the clerk must appoint the mediator. The clerk will then also set a time, date and venue for the mediation and assist the parties to conclude a written mediation agreement, which must be signed by the parties. The party claiming relief must lodge a statement of claim with the clerk within ten days of signing the agreement. The party against whom relief is being claimed must lodge a statement of defence with the clerk.
In the event that litigation has already commenced, the parties are to provide the mediator with copies of the summons and plea, or statement of defence where no plea is filed in the case of action proceedings. In application proceedings the parties are to lodge copies of the founding, answering and replying affidavits, or statement of defence if no answering affidavit has been filed.
Step 5: Filing of documents
The parties are entitled to file, with the clerk of the court, any document or evidential material on which the action is based, or which the parties intend to use at mediation proceedings at least seven days before the mediation proceedings. The parties may also file or supplement these documents during the mediation proceedings.
Step 6: Representation at mediation
The parties have a right to be represented at mediation proceedings, however, this is not mandatory.
Step 7A: Successful mediation
Should the parties reach agreement as a result of the mediation, the mediator must assist the parties to draft the settlement agreement, which must then be transmitted by the mediator to the clerk. On receipt of the agreement, the clerk must place the agreement before a magistrate in chambers for noting that the dispute has been resolved or to make the agreement an order of court, by the agreement of the parties.
Step 7B: Unsuccessful mediation
If settlement is not reached in mediation between the parties, the clerk must, on receipt of the report from the mediator, file the report to enable litigation to continue, from which all suspended time periods will continue to run.
Mediation is quicker than the usual route of full blown litigation and is more cost-effective, amicable and may prove more successful for both parties involved. Attorneys, litigants and parties to a dispute are encouraged to entertain the mediation route and settle their disputes cordially outside court.
Caitlin Askew LLB (Rhodes) is a candidate attorney at BKM Attorneys in Johannesburg.
This article was first published in De Rebus in 2016 (Jan/Feb) DR 17.