Mediate before litigation – court rules in bid to end congestion

FROM this week, new court rules require that parties who consider litigating 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. It aims to save costs and reduce the heavy burden on the court system.

Advocate Jackie Nagtegaal, managing director of the legal insurance brand Law For All, said there were many barriers that South Africans faced when turning to court. This included the costs associated with lengthy court processes.

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

Nagtegaal said that mediation was all about resolving a dispute outside of the courtroom, without a costly litigation process. The parties, instead of the mediator or a judge, are in control of the resolution to their problem.

She said benefits to mediation included that legal disputes were generally resolved quicker, costs significantly reduced, relationships kept intact.

Nagtegaal said experience had taught her that by talking, listening and finding a compromise, very few cases need to reach the litigation stage.

Jean Paul Rudd, lawyer at law firm Adams & Adams, said this new rule was good news. “The introduction of mediation by the rules board is a fantastic initiative. The effectiveness of the amendment will, however, very much depend on whether the defendants come to the party, so to speak.”

He said defendants were notorious for dragging out litigation to delay paying compensation. “Insurers and defendants with deep pockets try to out-litigate plaintiffs by dragging the matters out as long as possible, so that plaintiffs run out of money and are accordingly forced to abandon their actions,” he said.