Mandatory mediation in High Court proceedings
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by Advocate Ivor Heyman
Advocate of the High CourtFor 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. Those of us 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.
Since mediation is not well understood, I have put together a series of short videos on mediation which you can share with your clients. The videos can be found at:
https://www.youtube.com/channel/UCa-vHvbQYJxsktU-mFqpfFQ
Please note that the videos are informational only and can never take the place of legal advice from an attorney on the question of whether mediation is appropriate in a particular dispute. Please note also that, while the videos focus on the benefits of mediation in family law disputes, mediation can be used in a wide range of disputes.
Please feel free to share any feedback or questions that you receive from your clients about mediation and its potential benefits in resolving a dispute.