Mandatory mediation as a dispute resolution mechanism in the civil justice system

Abstract

Mediation as a dispute resolution mechanism is not an unfamiliar concept in the South African civil justice jurisprudence. Approximately 50 statutes contain provisions referring to mediation. Apart from provisions in the Labour Relations Act that provide for mandatory conciliation in certain instances, mediation is otherwise not compulsory. The adversarial nature of the civil justice system in South Africa and the overburdened courts inevitably lead to protracted and expensive battles in court. This research investigated the need for mandatory mediation as a necessary procedural step in the civil dispute resolution process, considering the newly promulgated court-annexed mediation. The process of mediation allows parties to come up with a solution that is suitable to both, as amicably as possible and without influence from their legal representatives. When there is a dispute between parties, an appointed mediator will facilitate discussions between the parties to assist in identifying issues and explore possible concessions or solutions. The practical and academic reasons for the research was to indicate how mediation can ameliorate the negative effects of the adversarial system on litigants and courts and contribute to the constitutional mandate of access to justice through speedy and cost-effective dispute resolution mechanisms. The study focused on the historical development of mediation in the South African context and investigated the mediation process as well as the relevant terminology. The research furthered consider the current legal status of mediatory provisions contained in statutes with specific reference to the newly promulgated court-annexed mediation rules that provide for voluntary submission to mediation. A critical discussion of the advantages and disadvantages of mediation was undertaken, as well as the constitutionality of mandatory mediation in relation to the constitutional right of access to courts. The effectiveness of the pilot court-annexed mediation project in certain magisterial districts in the Gauteng and North West Provinces was explored with the view to indicate if the project is successful and what impact it has on the justice system. The dissertation further indicated that mediation increases access to justice, decongests court roles and is cost-effective for both litigants and government. Comparative law and experience, particularly that of Indonesia and Canada, where mandatory mediation has been implemented in order to gain insight in the success and failures in those jurisdictions were explored to assist in establishing the applicability in the South African context. For contextual information, the South African Law Commission’s report on Alternative Dispute Resolution and subsequent policy decisions by government leading to the promulgation of the court-annexed mediation rules were used. Empirical data from the Department of Justice was used to determine the efficacy of the pilot court-annexed mediation project. Three court cases were briefly discussed to indicate the judicial approval of mediation, as well as the legislation providing for mediation.