A number of decisions in the United States courts confirm that there is such a thing as bad faith mediation. Those are considered in this high court judgment.
While those judgments are instructive, it is necessary to recognise the distinction between voluntary and coercive mediation.
High Court Rule 41A is constructed on the premise of voluntary mediation with the parties remaining in control of the process and the outcome. Under rule 41A a court is nevertheless expected to enquire into the conduct of the parties during the mediation process when determining an appropriate order for costs. It is inevitable that issues of bad faith mediation will be raised and will have to be considered alongside those issues mentioned in rule 41A(9)(b), which is limited to comparing the outcome of the case with offers and tenders which may have been made during the mediation process.
Bad faith mediation may be divided into conduct by a party which does not take into account a state of mind but only their external acts. That may manifest itself in a failure to attend the mediation, a failure to appoint a person who has sufficient authority to engage in or conclude a successful mediation, or even a failure to prepare at all for a mediation session.
There is also the possibility that the subjective intent of a party may result in that person being found to have mediated in bad faith.
Under rule 41A abusing the mediation process for purposes of delay will result in it being aborted on an application to court.
Rule 41A encourages mediation through a “mild-mannered approach” with only a cost sanction at the end of litigation and an aborting of the process if there is abuse.
The rule does not provide a basis for coercion nor lay down any clearly prescribed requirements.
Rule 41A provides for confidentiality of the mediation process and the documents which came into existence during that process.
Where there are allegations of bad faith mediation and reference to the mediation documents is required to resolve those allegations, a court could have regard to the documents through what is determined a “judicial peek” and afford the parties an opportunity to argue on them but for the purposes of the issue at hand only.
On the facts of the Kalagadi Manganese case, the court was unable to find that there was bad faith mediation and consideration of the documentation was not required.