Why Mediation? Read this now before its to late.


Mediation and the High Court Rules (Rule 41A)

For a long time, the High Court Rules have made it mandatory (in Rule 37(6)(d)) for parties in a High Court litigation to indicate whether their matter has been referred for mediation or other alternative form of dispute resolution. Every attorney who have attended pre-trial conferences will know that this question is usually glossed over, and mediation is seldom seriously considered by litigants in High Court matters.

As from 9 March 2020, a new amendment to the High Court Rules (Rule 41A) has made it mandatory for parties to consider mediation from the outset of the litigation.

The new rule requires that, in every new action or application, the Plaintiff or Applicant is required to serve, along with the summons or notice of motion, a notice indicating whether the Plaintiff or Applicant agrees or opposes referral of the dispute to mediation. The defendant or respondent in turn is required to serve a notice indicating whether it agrees or opposes referral of the dispute to mediation. These notices must state the reasons for each party’s belief that the dispute is or is not capable of being mediated. There is also provision in the rule for the Judge or the Case Management Judge, acting in terms of Rule 37A, to direct the parties to consider that the matter be referred to mediation.

We will in the following weeks educate our clients on mediation in general and the benefits of using mediation as an alternative dispute resolution.