What does this mean for litigants and the public? The formal incorporation of mediation in the Rules does not make it compulsory for the parties to pursue mediation. The Rules, however, emphasise the consideration of mediation by parties in litigation and requires parties to inform each other, as well as the court, of their intentions regarding mediation.
For a party considering a new action or application, the Rules regulating mediation provide that a Plaintiff or Applicant issuing a new action and/or application in the Magistrate’s Court should serve on the opposition a notice indicating whether such Plaintiff or Applicant agrees to or opposes the referral of the matter to mediation. The Rules also provide that a Defendant or Respondent shall similarly when delivering a notice to defend and/or notice to oppose, or at any time thereafter, but not later than the delivery of a plea or answering affidavit, serve the Plaintiff or Applicant with a responding notice indicating whether such Defendant or Respondent agrees to or opposes the referral of the matter to mediation. Parties are essentially requested to advance reasons why they are of the view that a matter is or is not capable of being mediated.
Parties may at any stage, before judgement, agree to refer a dispute between them to mediation. Should a matter already be on trial, or should an opposed application already have commenced, and the parties decide to mediate, the parties will have to first obtain the leave of the court. Where parties agree to mediate a dispute, they will be obliged to deliver a jointly signed minute recording of their election to refer the dispute to mediation and they will be required to enter into an agreement to mediate. Important to note, matters in which there are multiple parties to the litigation, with some of them in favour of mediation and some not, the parties who are in favour of mediation may proceed to mediate despite any other party’s refusal.
Mediation should be concluded within 30 days from the date of signing the joint minute, but time limits may be extended on application and good cause shown. During this period formal litigation processes, the filing of pleadings and affidavits are suspended. Should the suspension of the process be abused by a party, the innocent party may approach the court to uplift the suspension. Where there is more than one dispute to be mediated between the parties, the parties can refer those disputes that could not be resolved at mediation, back to the litigation process. When the mediation process is finalised the parties once again issue a joint minute indicating whether full or partial settlement was reached. All communications and disclosures made during mediation proceedings, be it in writing and/or oral, are considered confidential and inadmissible as evidence unless agreed otherwise between the parties.
Although mediation is not compulsory between parties in litigation, parties should consider some of the positives relating to mediation. Mediation can be less costly, less formal and devoid of protracted processes that are often associated with litigation.
Although all matters are decided on their own merits, a party who outright disregards mediation, in circumstances where mediation should have been the preferred option, may not only be awarded an unfavourable outcome but may find disapproval with the court and may be penalised with a punitive cost order. So, mediation should not just be ignored and parties would do well to consider and discuss with their attorneys the option of mediation in relation to their Magistrate’s Court dispute.
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