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Changes to Court rules - Rule 41 A

Rule 41A

Formalising the Role of
Mediation in High Court

In December 2019, the Rules Board for Courts of Law of the Republic of South Africa proposed the High Court Uniform Rule 41A. The Rule was gazetted on 7 February 2020 (page 31) and comes into effect on 9 March 2020.

The rule is expected to change South Africa's litigation system, putting mediation in the spotlight as the mainstream mechanism for resolving disputes.

FHBC identified some highlights of what High Court Rule 41A entails:

·  Parties are required to specifically indicate whether they consider mediation to be possible (or not, along with reasons for either consideration) when issuing summons or when delivering a plea.

·  The parties have to deliver a joint minute, documenting their mutual agreement that the dispute may be referred to mediation.

·  While mediation is in progress, time limits to deliver pleadings are suspended.

·  Where multiple parties are involved in the litigation process, it will be possible for only some of the parties to proceed to mediation.

·  The confidentiality and admissibility of documents is taken into consideration.

·  A joint memorandum indicating the outcome of the mediation must be submitted.

·  Cost orders may be given for the costs of the mediation proceedings.

Rule 41A is not specific to any type of dispute, but applies to all disputes brought before the High Court.

 

Why Mediation?

 

Divorce isn’t such a tragedy. The tragedy is staying in an unhappy marriage, teaching your children the wrong things about love

Why Mediation?

Mediation is a cost effective, fair, fast and efficient process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement.

Because you and your spouse have the final say over your divorce matters, mediation also allows couples to maintain the power and control in their divorce, as opposed to asking a judge after, often a very expensive court trail, to decide.

2018 Statistics indicates that there is a 74% achieving settlements within the first day of sessions of mediation.

Will Mediation work?

The short answer is yes. Mediation is an alternative method of resolving disputes and gives you greater control over the decision-making process. It gives you more say over the arrangements concerning the children and how finances should be divided. Mediation fails when one of the parties negotiate in bad faith. In a case like that, the Mediator may decide to terminate the process and issue a certificate in that regard, which will compel the parties to seek legal recourse and litigate in court.

Who is the Mediator?

Find a Mediator who is registered as a Mediator at one of the various Mediation regulation bodies in South Africa or Internationally.

Mediation is one of those rare processes that is both a science and an art form. All mediators are first trained on how to facilitate communications between disputing parties, and over time develop an ability to deal with all kinds of people in a variety of circumstances. They suggest ways that a dispute may be resolved but refrain from imposing their own judgment on the issues at stake.

So what makes someone a “great” mediator? Although many positive qualities and skills come into play, the five characteristics below are invaluable when it comes to success.

Trustworthiness

A good mediator inspires trust. When people attend a mediation session, they want to believe that the mediator will keep all discussions confidential and use any information they receive to reach a mutually acceptable resolution to the situation. If the mediator’s manner reflects sincerity, strength, and fairness, both sides may be more cooperative and receptive to the mediation process.

Approach-ability

Good mediators are seen as friendly, empathetic, and respectful. They listen carefully, appreciate the emotions and needs that underlie each conversation, and come across as genuinely concerned with the well-being of everyone involved. When they acknowledge feelings, display an appropriate sense of humor, and convey a sense of optimism, both sides to a dispute will, in theory, follow suit.

Dedication

Dedication is a sterling quality in all professionals, and mediators are no exception. When they devote time before each session to properly prepare and work diligently to achieve a positive outcome in every situation, their effectiveness in dispute resolution increases. Clients are quick to perceive when a mediator is applying extra effort to bring about a fair conclusion.

Perceptiveness

Parties to a dispute want mediators who can quickly grasp a situation, understand its complexities and dynamics, and provide a clearer understanding of options by analyzing the issues and identifying risk. This level of perceptiveness enables more creative problem solving and increases the chances of an outcome that both sides find acceptable.

Impartial

When it comes to successful mediation, impartiality is as important as approach-ability. To be effective, a mediator must be able to control their feelings and not invest emotionally in the outcome of the proceedings.

Mediation is arguably one of the best conflict resolution processes, being more positive and less expensive than litigation. Mediation is highly effective, and more than 80% of cases referred to mediation are resolved at mediation.

Mediators are not acting as Psychologists, Marriage Counselors, Social Workers or Judges.

 Who would benefit from using Mediators?  

All parties caught up in a dispute, and who are willing to have their issues resolved with the assistance of an impartial third party, without costly litigation in court. Parties who appreciate and understand that disputes can be resolved by compromise and agreement, and don’t want legal technicalities to influence amicable outcomes.   

Who Attends Mediation Proceedings?

All parties directly involved in the case are invited to attend the mediation. Legal advisers, witnesses, and other support people may also be included. However, if any of the attendees, charge a fee for their services, it is not covered by the mediator’s fees.

Children should not attend Mediation Proceedings. Parents who have their children’s best interest at heart, will not subject them to this trauma.

We are divorced, We are friends and we are good parents.

Why should children NOT be involved in mediation?

In South Africa the Children’s Act makes provision within the Family Advocate’s Act that the child’s best interest enjoys priority. The office of the Family Advocate will do an extensive and intensive investigation, which includes interviews with the child, before releasing their own recommendations in respect of visitation and access to the child. This report with its findings, normally becomes part of the court trial and will be included in the divorce decree. It is our view that parents who cannot agree about fair access and visitation, will resort to the help of the Family Advocate, and not mediation.

Divorce can make children feel like defectors.

 However, when parents decide to part ways and use Alternative Dispute Resolution processes, such as Mediation, it is the belief that both parties have the child’s best interests at heart. Without the best interest of the child at heart, Mediation becomes impossible, as the purpose of mediation is to reach an agreement with which both parties are happy.

 A parenting plan, laying out co-parenting and shared responsibilities should become part of the mediation agreement, and should not involve children in a lengthy and sometimes traumatic investigation.

A child, therefore, should not be exposed to such a traumatic event.

With the consent of both parents and the discretion of the Mediator, a child may join the proceedings, at the end thereof, in order to be informed about the agreement.

What happens during Mediation?

The mediation process can include some or all of the following seven steps:

  1. Planning. Before the mediation process begins, the mediator helps the parties decide where they should meet and who should be present. ...
  2. Mediator's introduction. ...
  3. Opening remarks. ... All parties get a chance to talk, without interruption
  4. Joint discussion. ... Find common ground, find conflict areas.
  5. Caucuses. ... Individually
  6. Negotiation…. Outcomes
  7. Draw up agreement and sign

Dialogue is the most effective way of resolving conflict.

What happens after Mediation?

After mediation has facilitated an agreement between the parties, it's the responsibility of each of the parties to uphold their end of the contract. The agreement may be taken to High Court and have it made an Order by a Judge.  This is highly recommended.

How much does Mediation cost?

The cost of Mediation can vary from Mediator to Mediator. The cost is mostly influenced by the expertise of the mediator.

Mediators can either charge a rate for the whole process (with a maximum time limit) or an hourly rate. This can be arranged with Mediator.

 

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