In this Gauteng High Court judgement, the court provides some useful comments on the application of High Court Rule 41A requiring litigants to attempt to mediate their dispute, and the question of bad faith mediation. This is helpful, considering the embryotic stage of the rule and the paucity of case law or literature on the topic.
Parties may come into mediation with preconceived ideas which may never be shaken. The court said that cannot be equated with bad faith:
“If each party believes that the other cannot be trusted and the mediators cannot overcome that stumbling block then no amount of reassurance or the provision of alternate forms of security for guaranteeing performance is going to change that, whereas appreciating the downside of not finding an alternate solution may”.
The court had to consider the question whether there is a legally enforceable obligation to be receptive to a proposal put, and at least to consider it in good faith; and if so, whether there are any legal consequences if a party does not.
Mediation accepts that parties may come with intractable positions which may be routed in something quite unrelated to the legal or factual issues they have chosen to define or which have arisen in the actual litigation between them.
“The mediation process seeks to help the parties find each other and move away from the cause of the litigation. The process may take quite imaginative forms, may still involve one party outmanoeuvring the other or using its superior bargaining position which in turn results in the other submitting to a poor settlement, albeit preferable to a possible adverse court outcome. The mediator is not there to determine what is fair. The mediator seeks to facilitate a resolution to the dispute between the parties in a non-adversarial and non-judgmental way. A mediation process is not about negotiating the legal position of the parties as set out in court papers. It is about finding a way out of the deadlock by exploring possible solutions which may have no bearing on the actual issues before the court but will bring about their resolution in a non-adversarial way.”