Superimposed over ordinary voluntary mediation, where a party can withdraw at any stage without potentially attracting any adverse consequences, is the judicially sanctioned High Court Rule 41A procedure obliging the parties to consider a non-adversarial resolution to a dispute which is already before the courts.
The provisions of rule 41A are consistent with the understood purpose of mediation and its general nature and functioning:
Mediation is encouraged as a form of alternate dispute resolution. The sanction for a failed mediation may be an adverse costs order (see Part 3 of this blog).
Mediation is voluntary and the parties are at liberty to agree on such terms of mediation as they wish. An unwilling party cannot be compelled to mediate. The furthest the court can go is to direct a litigant “to consider” mediation.
If some of the parties agree to mediate, the other parties in the same litigation are not obliged to fall in line. They must simply wait out the period while litigation is stayed until the mediation process is complete.
Except in limited circumstances which may be provided under law, a court cannot be informed of any of the mediation proceedings prior to the final outcome of the litigation. Even if settlement has been reached it is unnecessary for the court to be informed of the terms.
The appointment of a suitably qualified mediator will promote a better outcome.
The judgment is Kalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of South Africa Ltd and Others (2020/12468) [2021] ZAGPJHC 127.
