​Mediation the New Rule 41A of the High Court
Unpacking Rule 41A of the High Court: A New Dawn in Mediation
1. Initial Overview
At the crux of our legal framework lies Rule 41A of the High Court, a provision that seems to have lawyers in a bit of a quagmire as they try to fathom how this rule, coupled with online mediation, could be leveraged to resolve their clients' cases. The emergence of Rule 41A beckons a new era where a proficient and seasoned mediator steps into the fray, assisting lawyers in either settling their clients’ cases or narrowing down the contentious issues. This shift is poised to leave a lasting imprint on our litigation landscape, as mediation is envisioned to become a mainstream recourse for dispute resolution.
2. Setting the Mediation Stage
Rule 41A lays down the foundation for litigants to explore mediation before taking the legal battle to the courtroom.
Within sub rule (2)(a), a plaintiff or applicant is required to submit a specified Rule 41A Notice expressing either consent or opposition to mediation before any summons or motions are issued.
Following suit, sub rule (2)(b) mandates the defendant or respondent to also file a designated Rule 41A Notice of consenting or opposing mediation, before a plea or opposing papers are issued.
According to sub rule (2)(c), these notices should substantially align with Form 27 of the First Schedule. As stipulated in sub rule (2)(d), the notices are to be filed without prejudice and are not to be submitted to the Registrar.
The essence of this provision is to keep the parties' fundamental stances towards mediation undisclosed to the trial judge until the trial's conclusion.
If either or both parties opt to oppose mediation, they must clearly and succinctly state the grounds in their sub rule (2) Notices as to why the case is or isn't suitable for mediation.
A scenario that comes to mind is when urgent relief is sought from the court. Much like in the UK, it is anticipated that case law will evolve to offer lawyers guidance on whether a dispute is mediatable or not.
3. Advancing Towards Mediation
It's probable that in a majority of cases, parties will issue notices under sub rule (2) affirming their case's suitability for mediation, opting for this path rather than facing the risk of an adverse cost order at the trial's end.
The aim of sub rule (2) is to compel parties to declare their stance on mediation early in the process.
This rule, however, doesn’t immediately usher in mediation. It necessitates a secondary step: a formal referral to mediation.
Sub rule (3) elaborates that parties may at any juncture of the proceedings, notwithstanding sub rule (2), refer their dispute to mediation, albeit with the court's leave if the hearing has commenced.
A judge or a Rule 37A case management judge may, as per (3)(b), direct the parties to contemplate referring the dispute to mediation.
Yet, sub rule (3) leaves the process of referral to mediation vague. It's sub rules (4)(a) and (4)(b) that illuminate the pathway.
4. Embarking on the Mediation Journey
The preliminary step entails the parties lodging a Joint Minute as per sub rule 4(a) documenting their resolve to mediate the dispute or any facet thereof.
The consequence of this initial step, as highlighted in sub rule (4)(c), is the suspension of time constraints for pleadings, notices, and affidavits from the date of filing the aforementioned Joint Minute until mediation concludes. However, any party suspecting abuse of this suspension may petition the court to lift it.
As dictated by sub rule (4)(d), the mediation should reach completion 30 days from the date of signing the Joint Minutes filed in alignment with sub rule (4)(a), though a court may extend this duration on valid grounds.
The subsequent step, as outlined in sub-rule (4)(b), involves the parties entering into an Agreement to Mediate.
Typically, parties sign an agreement to mediate before the actual mediation, agreeing on the following:
Engaging in an Agreement to Mediate isn’t straightforward as disputes are likely to arise concerning who qualifies as a competent mediator. It's advisable for lawyers to participate in complimentary, no-strings-attached online pre-mediation sessions usually offered by veteran mediators, where they can finalize an Agreement to Mediate and decide on their mediator selection.
5. The Mediation Process
The third step unfolds when mediation takes place as per the Agreement to Mediate. All dialogues and disclosures, be they oral or written, during the mediation proceedings remain confidential and are inadmissible as evidence as per sub rule (6), unless otherwise provided by law or discoverable under the rules.
Rule 41A mediation is expected to not be purely facilitative in practice. Lawyers unfamiliar with the varied styles of mediation should acquaint themselves swiftly. It's crucial to understand what to expect from the mediator and what their clients are anticipating in terms of costs. Hence, attending a free pre-mediation (information) session is invaluable.
6. Concluding the Mediation
Post-mediation, certain steps are to be taken:
As per sub rule (7)(a), the parties alongside the mediator must notify the Registrar and other parties through a Notice that the mediation has concluded.
Failing to do so, (7)(b) states that the suspension of time limits under this rule nonetheless expires, unless a court decides otherwise.
Sub rule (8)(b) mandates the parties and the mediator to file a Joint Minute within 5 days following the mediation’s conclusion, indicating:
It's a collective responsibility of the parties as per sub rule (8)(c) to file the (8)(b) Joint Minute with the Registrar.
Sub rule (8)(a) articulates[3] that the mediation shall be considered completed 30 days post the signing of the Joint Minute as referenced in sub rule (4)(a), and the suspension of time limits shall then lapse.
Should the mediation wrap up before the 30 days, the parties may file the Notice as envisaged in sub rule (7)(a) that the mediation has concluded, to ensure the 30-day suspension of time limits for court processes can be lifted earlier.
Sub rule (8)(d) dictates that no offer or tender made without prejudice under this sub rule shall be disclosed to the court at any point before a judgement is rendered.
Sub rule (8)(e) establishes that Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation. Rule 43(3) stipulates that if a settlement is achieved, the plaintiff’s attorney must inform the Registrar, and Rule 41(4) provides that any party to a written settlement signed by all parties may apply for judgement as per the settlement with a five days' notice.
7. Costs and Confidentiality Concerns
Sub rule (9)(a) posits that unless the parties agree otherwise, the costs of mediation shall be shared equally.
Sub rule (9)(b) provides that when deliberating on an order for costs of the action or application, the court may consider the sub rule.
1. Initial Overview
At the crux of our legal framework lies Rule 41A of the High Court, a provision that seems to have lawyers in a bit of a quagmire as they try to fathom how this rule, coupled with online mediation, could be leveraged to resolve their clients' cases. The emergence of Rule 41A beckons a new era where a proficient and seasoned mediator steps into the fray, assisting lawyers in either settling their clients’ cases or narrowing down the contentious issues. This shift is poised to leave a lasting imprint on our litigation landscape, as mediation is envisioned to become a mainstream recourse for dispute resolution.
2. Setting the Mediation Stage
Rule 41A lays down the foundation for litigants to explore mediation before taking the legal battle to the courtroom.
Within sub rule (2)(a), a plaintiff or applicant is required to submit a specified Rule 41A Notice expressing either consent or opposition to mediation before any summons or motions are issued.
Following suit, sub rule (2)(b) mandates the defendant or respondent to also file a designated Rule 41A Notice of consenting or opposing mediation, before a plea or opposing papers are issued.
According to sub rule (2)(c), these notices should substantially align with Form 27 of the First Schedule. As stipulated in sub rule (2)(d), the notices are to be filed without prejudice and are not to be submitted to the Registrar.
The essence of this provision is to keep the parties' fundamental stances towards mediation undisclosed to the trial judge until the trial's conclusion.
If either or both parties opt to oppose mediation, they must clearly and succinctly state the grounds in their sub rule (2) Notices as to why the case is or isn't suitable for mediation.
A scenario that comes to mind is when urgent relief is sought from the court. Much like in the UK, it is anticipated that case law will evolve to offer lawyers guidance on whether a dispute is mediatable or not.
3. Advancing Towards Mediation
It's probable that in a majority of cases, parties will issue notices under sub rule (2) affirming their case's suitability for mediation, opting for this path rather than facing the risk of an adverse cost order at the trial's end.
The aim of sub rule (2) is to compel parties to declare their stance on mediation early in the process.
This rule, however, doesn’t immediately usher in mediation. It necessitates a secondary step: a formal referral to mediation.
Sub rule (3) elaborates that parties may at any juncture of the proceedings, notwithstanding sub rule (2), refer their dispute to mediation, albeit with the court's leave if the hearing has commenced.
A judge or a Rule 37A case management judge may, as per (3)(b), direct the parties to contemplate referring the dispute to mediation.
Yet, sub rule (3) leaves the process of referral to mediation vague. It's sub rules (4)(a) and (4)(b) that illuminate the pathway.
4. Embarking on the Mediation Journey
The preliminary step entails the parties lodging a Joint Minute as per sub rule 4(a) documenting their resolve to mediate the dispute or any facet thereof.
The consequence of this initial step, as highlighted in sub rule (4)(c), is the suspension of time constraints for pleadings, notices, and affidavits from the date of filing the aforementioned Joint Minute until mediation concludes. However, any party suspecting abuse of this suspension may petition the court to lift it.
As dictated by sub rule (4)(d), the mediation should reach completion 30 days from the date of signing the Joint Minutes filed in alignment with sub rule (4)(a), though a court may extend this duration on valid grounds.
The subsequent step, as outlined in sub-rule (4)(b), involves the parties entering into an Agreement to Mediate.
Typically, parties sign an agreement to mediate before the actual mediation, agreeing on the following:
- Selection of a duly qualified mediator,
- Covering the costs of mediation, including the mediator's fees,
- The timing and venue for the mediation.
Engaging in an Agreement to Mediate isn’t straightforward as disputes are likely to arise concerning who qualifies as a competent mediator. It's advisable for lawyers to participate in complimentary, no-strings-attached online pre-mediation sessions usually offered by veteran mediators, where they can finalize an Agreement to Mediate and decide on their mediator selection.
5. The Mediation Process
The third step unfolds when mediation takes place as per the Agreement to Mediate. All dialogues and disclosures, be they oral or written, during the mediation proceedings remain confidential and are inadmissible as evidence as per sub rule (6), unless otherwise provided by law or discoverable under the rules.
Rule 41A mediation is expected to not be purely facilitative in practice. Lawyers unfamiliar with the varied styles of mediation should acquaint themselves swiftly. It's crucial to understand what to expect from the mediator and what their clients are anticipating in terms of costs. Hence, attending a free pre-mediation (information) session is invaluable.
6. Concluding the Mediation
Post-mediation, certain steps are to be taken:
As per sub rule (7)(a), the parties alongside the mediator must notify the Registrar and other parties through a Notice that the mediation has concluded.
Failing to do so, (7)(b) states that the suspension of time limits under this rule nonetheless expires, unless a court decides otherwise.
Sub rule (8)(b) mandates the parties and the mediator to file a Joint Minute within 5 days following the mediation’s conclusion, indicating:
- Whether a full or partial settlement was achieved or if mediation was unsuccessful, and
- The issues on which agreement was reached that no longer necessitate a court hearing.
It's a collective responsibility of the parties as per sub rule (8)(c) to file the (8)(b) Joint Minute with the Registrar.
Sub rule (8)(a) articulates[3] that the mediation shall be considered completed 30 days post the signing of the Joint Minute as referenced in sub rule (4)(a), and the suspension of time limits shall then lapse.
Should the mediation wrap up before the 30 days, the parties may file the Notice as envisaged in sub rule (7)(a) that the mediation has concluded, to ensure the 30-day suspension of time limits for court processes can be lifted earlier.
Sub rule (8)(d) dictates that no offer or tender made without prejudice under this sub rule shall be disclosed to the court at any point before a judgement is rendered.
Sub rule (8)(e) establishes that Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation. Rule 43(3) stipulates that if a settlement is achieved, the plaintiff’s attorney must inform the Registrar, and Rule 41(4) provides that any party to a written settlement signed by all parties may apply for judgement as per the settlement with a five days' notice.
7. Costs and Confidentiality Concerns
Sub rule (9)(a) posits that unless the parties agree otherwise, the costs of mediation shall be shared equally.
Sub rule (9)(b) provides that when deliberating on an order for costs of the action or application, the court may consider the sub rule.