DRAFT RULE 41A – South Africans must now consider mediation before heading to court

The Rules Board for Courts of Law has issued a new Rule that will require South Africans to consider mediation before heading to court. [This Rule came into effect on 9 March 2020].

Find New Rule 41A here:

PJ Veldhuizen, managing director of Gillan and Veldhuizen and a practising commercial mediator, said that the new proposed rule will result in a much-needed easing-off of pressure on South African courts and legal process and the costs of legal representation.

If mediation has not been considered, the court will be required to manage cases effectively and recommend mediation as a dispute resolution if it deems it appropriate.

“Mediation, which was introduced in South Africa as an Alternative Dispute Resolution (ADR), is a time- and cost-effective means whereby parties to a dispute can appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement,” he said.

“The mediator facilitates discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options to resolve the dispute.”

Veldhuizen said that the proposed rule, Rule 41A, will require the practising representative attorney to declare before the court that he/she has advised his/her client to consider mediation as a means of attempting to resolve the dispute which is the subject of the proposed proceedings.

“The rule will require the parties, when issuing summons or application or delivering a plea or answering affidavit, to indicate whether they consider mediation to be possible and to give reasons for their consideration.

“Failing to do so could result in penalisation by way of costs orders,” he said.

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