Mediation the New Rule 41A of the High Court
COVID-19 has placed the new Mediation Rule 41A of the High Court at the center of our legal system. Lawyers are battling to grasp just how Rule 41A and online mediation can assist them all solve their clients’ cases. Nonetheless, it produces a problem-solving environment in which a competent and knowledgeable mediator can assist lawyers settle their clients’ cases or reduce the issues in dispute. This will alter our litigation process considerably as mediation is recommended to develop into the mainstream mechanism for solving disputes.
Rule 41A prepares the ground for litigants to mediate, prior to going to court.
Sub rule (2)(a) obliges a plaintiff or applicant to lodge a prescribed Rule 41A Notice of consenting or opposing mediation, prior to summons or motions can be issued.
Subsequently, sub rule (2)(b) obliges the defendant or respondent to also file a prescribed Rule 41A Notice of consenting or opposing mediation, prior to a plea or opposing papers can be issued.
These notices according to sub rule (2)(c) need to be substantially in conformity with Form 27 of the First Schedule. In accordance with sub rule (2)(d) the notices will be without prejudice and never filed with the Registrar.
The function is not to reveal the parties’ basic positions in regard to mediation to the trial judge, up until the end of the trial.
If one or both parties choose to oppose mediation, then they must clearly and briefly identify grounds in their sub rule (2) Notices that the case is or is not competent of to be mediated.
An instance that springs to mind is where urgent relief is needed from the court. It is anticipated as in the UK that case law will develop to give lawyers assistance on whether a dispute can be mediated or not.
It is nevertheless most likely that in most cases the parties will give notice in terms of sub rule (2) that their case is competent of mediation. They would do so instead than take the risk of a negative cost order at the end of the trial.
The objective of sub rule (2) is to force parties to declare their positions on mediation very early on.
It does not instantly open the front door to mediation. The Rule calls for a second step, that is a formal referral to mediation.
Sub rule (3) provides that the parties can at every stage of the proceedings, despite sub rule (2), refer their dispute to mediation, provided that leave of the court is essential if the hearing has commenced.
Or a judge or Rule 37A case management judge could in terms of (3)(b) direct the parties to give consideration to referring a dispute to mediation.
Sub rule (3} does not however explain how the referral to mediation takes place. Sub rules (4)(a) and (b) show the way.
The very first step is for the parties to lodge a Joint Minute in terms of sub rule 4(a) that records their commitment to mediate the dispute or any aspect of the dispute.
The impact of the first step in accordance to sub rule (4)(c) is that the time limitations for pleadings, notices and affidavits are suspended from the date of filing the above Joint Minute to the conclusion of the mediation, provided that any party who is convinced the suspension is being abused could approach the court to uplift the suspension.
In terms of sub rule (4)(d) the mediation has to be completed 30 days from the date of the signature of the Joint Minutes filed in compliance with sub rule (4)(a), provided that a court may on good cause extend the period.
The second step in terms of sub-rule (4)(b) is for the parties to submit into an Agreement to Mediate.
The norm in mediation practice is that the parties sign an agreement to mediate prior to mediation and in which they consent on the following:
Entering into an Agreement to Mediate is not a straightforward matter as disputes are most likely to occur in regard to who a properly qualified mediator is. It is suggested that lawyers attend free no strings attached online pre-mediation meetings usually offered by experienced mediators, where they can conclude an Agreement to Mediate and decide who to appoint as their mediator.
The third step is when the mediation takes place as per the Agreement to Mediate. All communications and disclosures, regardless of whether oral or in writing made at mediation proceedings is confidential and inadmissible as evidence in terms of sub rule (6), except as provided by law or discoverable under the rules.
It is anticipated that Rule 41A mediation will in practice not be solely facilitative. Lawyers who are not acquainted with the various styles of mediation need to become familiar as soon as feasible. They need to recognize what to expect from the mediator and what their clients are expecting to pay them. It is why participating in a free pre-mediation (information) meeting is so crucial.
On conclusion of the mediation the appropriate steps need to be taken:
In terms of sub rule (7)(a) the parties and the mediator must notify the Registrar and other parties by Notice that the mediation has been completed.
If they fail to do so, (7)(b) provides that the suspension of the time limits under this rule nevertheless lapses, unless of course a court decides otherwise.
In terms of sub rule (8)(b) the parties and the mediator must file a Joint Minute within 5 day after the conclusion of the mediation, indicating:
Sub rule (8 (a) provides[3] that the mediation shall be regarded to have been completed 30 days after the date of the signing of the Joint Minute referred to in sub rule (4)(a) and that the suspension of time limits shall also then lapse.
If the mediation concludes before the 30 days, the parties may file the Notice contemplated in sub rule (7)(a) that the mediation has been completed. This is to ensure that the 30-day suspension of time limits for court processes can be uplifted earlier.
Sub rule (8)(d) provides that no offer or tender made without prejudice in terms of this sub rule shall be disclosed to the court at any time before judgment has been given.
Sub rule (8)(e) provides that Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation. Rule 43(3) provides that if a settlement has been reached the attorney for the plaintiff has to inform the Registrar and Rule 41(4) provides that any party to a written settlement signed by all the parties, may apply for judgement in terms of the settlement with five days’ notice.
Sub rule (9)(a) provides that unless the parties agree otherwise that the parties shall pay the liability of the fees of the mediation equally.
Sub rule (9)(b) provides that when an order for costs of the action or application is considered, the court may have regard to the sub rule (2) Notices or any offer or tender referred to in sub rule (8)(d).
Any party may bring the above notices or offers to the attention of the court.
Sub rules (8)(d) and (9)(b) are controversial and unclear. It is questionable simply because mediation is a confidential process and for one party to refer to offers made during mediation is a breach of confidentiality.
It is unclear if the without prejudice offer must be in writing.
Is it an offer made during mediation or one made after completion of the mediation, without any reference to the mediation?
These are questions the courts, attorneys and mediators are going to have to grapple with if the Rules Board does not clarify sub rules (8)(d) and (9)(b).
Rule 41A tests the adversarial civil justice system that we inherited from England. It produces a problem-solving environment where a skillful and experienced mediator can assist lawyers settle their clients’ cases or restrict the issues in dispute.
Rule 41A prepares the ground for litigants to mediate, prior to going to court.
Sub rule (2)(a) obliges a plaintiff or applicant to lodge a prescribed Rule 41A Notice of consenting or opposing mediation, prior to summons or motions can be issued.
Subsequently, sub rule (2)(b) obliges the defendant or respondent to also file a prescribed Rule 41A Notice of consenting or opposing mediation, prior to a plea or opposing papers can be issued.
These notices according to sub rule (2)(c) need to be substantially in conformity with Form 27 of the First Schedule. In accordance with sub rule (2)(d) the notices will be without prejudice and never filed with the Registrar.
The function is not to reveal the parties’ basic positions in regard to mediation to the trial judge, up until the end of the trial.
If one or both parties choose to oppose mediation, then they must clearly and briefly identify grounds in their sub rule (2) Notices that the case is or is not competent of to be mediated.
An instance that springs to mind is where urgent relief is needed from the court. It is anticipated as in the UK that case law will develop to give lawyers assistance on whether a dispute can be mediated or not.
It is nevertheless most likely that in most cases the parties will give notice in terms of sub rule (2) that their case is competent of mediation. They would do so instead than take the risk of a negative cost order at the end of the trial.
The objective of sub rule (2) is to force parties to declare their positions on mediation very early on.
It does not instantly open the front door to mediation. The Rule calls for a second step, that is a formal referral to mediation.
Sub rule (3) provides that the parties can at every stage of the proceedings, despite sub rule (2), refer their dispute to mediation, provided that leave of the court is essential if the hearing has commenced.
Or a judge or Rule 37A case management judge could in terms of (3)(b) direct the parties to give consideration to referring a dispute to mediation.
Sub rule (3} does not however explain how the referral to mediation takes place. Sub rules (4)(a) and (b) show the way.
The very first step is for the parties to lodge a Joint Minute in terms of sub rule 4(a) that records their commitment to mediate the dispute or any aspect of the dispute.
The impact of the first step in accordance to sub rule (4)(c) is that the time limitations for pleadings, notices and affidavits are suspended from the date of filing the above Joint Minute to the conclusion of the mediation, provided that any party who is convinced the suspension is being abused could approach the court to uplift the suspension.
In terms of sub rule (4)(d) the mediation has to be completed 30 days from the date of the signature of the Joint Minutes filed in compliance with sub rule (4)(a), provided that a court may on good cause extend the period.
The second step in terms of sub-rule (4)(b) is for the parties to submit into an Agreement to Mediate.
The norm in mediation practice is that the parties sign an agreement to mediate prior to mediation and in which they consent on the following:
- Appointment of an appropriately qualified mediator;
- The expenses of the mediation, and this includes the costs of the mediator;
- When and where the mediation is to take place.
Entering into an Agreement to Mediate is not a straightforward matter as disputes are most likely to occur in regard to who a properly qualified mediator is. It is suggested that lawyers attend free no strings attached online pre-mediation meetings usually offered by experienced mediators, where they can conclude an Agreement to Mediate and decide who to appoint as their mediator.
The third step is when the mediation takes place as per the Agreement to Mediate. All communications and disclosures, regardless of whether oral or in writing made at mediation proceedings is confidential and inadmissible as evidence in terms of sub rule (6), except as provided by law or discoverable under the rules.
It is anticipated that Rule 41A mediation will in practice not be solely facilitative. Lawyers who are not acquainted with the various styles of mediation need to become familiar as soon as feasible. They need to recognize what to expect from the mediator and what their clients are expecting to pay them. It is why participating in a free pre-mediation (information) meeting is so crucial.
On conclusion of the mediation the appropriate steps need to be taken:
In terms of sub rule (7)(a) the parties and the mediator must notify the Registrar and other parties by Notice that the mediation has been completed.
If they fail to do so, (7)(b) provides that the suspension of the time limits under this rule nevertheless lapses, unless of course a court decides otherwise.
In terms of sub rule (8)(b) the parties and the mediator must file a Joint Minute within 5 day after the conclusion of the mediation, indicating:
- Whether a full or partial settlement was reached or whether mediation was unsuccessful, and
- The issues on which agreement had been reached and do not require a hearing by the court.
- It is the joint responsibility of the parties in terms of sub rule (8)(c) to file the (8)(b) Joint Minute with the Registrar.
Sub rule (8 (a) provides[3] that the mediation shall be regarded to have been completed 30 days after the date of the signing of the Joint Minute referred to in sub rule (4)(a) and that the suspension of time limits shall also then lapse.
If the mediation concludes before the 30 days, the parties may file the Notice contemplated in sub rule (7)(a) that the mediation has been completed. This is to ensure that the 30-day suspension of time limits for court processes can be uplifted earlier.
Sub rule (8)(d) provides that no offer or tender made without prejudice in terms of this sub rule shall be disclosed to the court at any time before judgment has been given.
Sub rule (8)(e) provides that Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation. Rule 43(3) provides that if a settlement has been reached the attorney for the plaintiff has to inform the Registrar and Rule 41(4) provides that any party to a written settlement signed by all the parties, may apply for judgement in terms of the settlement with five days’ notice.
Sub rule (9)(a) provides that unless the parties agree otherwise that the parties shall pay the liability of the fees of the mediation equally.
Sub rule (9)(b) provides that when an order for costs of the action or application is considered, the court may have regard to the sub rule (2) Notices or any offer or tender referred to in sub rule (8)(d).
Any party may bring the above notices or offers to the attention of the court.
Sub rules (8)(d) and (9)(b) are controversial and unclear. It is questionable simply because mediation is a confidential process and for one party to refer to offers made during mediation is a breach of confidentiality.
It is unclear if the without prejudice offer must be in writing.
Is it an offer made during mediation or one made after completion of the mediation, without any reference to the mediation?
These are questions the courts, attorneys and mediators are going to have to grapple with if the Rules Board does not clarify sub rules (8)(d) and (9)(b).
Rule 41A tests the adversarial civil justice system that we inherited from England. It produces a problem-solving environment where a skillful and experienced mediator can assist lawyers settle their clients’ cases or restrict the issues in dispute.
