The concept of “dispute resolution” has, to a large extent, evaded definition. It merges two fairly well understood yet loaded terms into a single catch-phrase. Actors in a dispute often neglect to define when something can be considered to be a “dispute” and further neglect to consider what it actually means for a dispute to be “resolved”. Despite this theoretical uncertainty, most people have a sense of what the concepts, both in isolation and in conjunction, mean.

Alternative dispute resolution (ADR), such as mediation, forms part of the dispute resolution toolkit available to those involved in disputes. In this sense it becomes useful to consider our legal system’s formal approach to mediation in the context of traditional court proceedings.

Here, Rule 41A, introduced into the Uniform Rules of Court (Rules) in February 2020, mandates that parties to a dispute consider mediation as a dispute resolution mechanism. Rule 41A(2)(a) prescribes that in every new action or application proceeding, “the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation”. As a result, the so-called “Rule 41A Notice” has become commonplace and somewhat formulaic in practice.

While it is now mandatory for parties to, at the very least, formally consider mediation as a dispute resolution mechanism, this compulsory mechanism presents issues in and of itself. On a surface level, the mandating of what the Rules themselves define as “a voluntary process entered into by agreement between the parties to a dispute” appears to be contradictory. The Rules go further to define mediation as “a voluntary process entered into by agreement between the parties to a dispute in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute”. This speaks to the issues identified by the SALRC, particularly whether mediation should ever be mandatory.

Court findings and mediation approaches

The courts have adopted varying approaches to the manner in which parties approach mediation in the pre-litigation phase of a dispute, as required by Rule 41A.

In the unreported case of Koetsioe and Others v Minister of Defence and Military Veterans and Others (12096/2021), the court illustrated that:

“[Rule 41A] not only requires a notice but clearly contemplated that a party must have considered the issue earnestly prior to exercising its election. This is clear from the requirement that a party must state its reasons for its belief that a dispute is or is not capable of being mediated.”

The court noted that the applicant disregarded the rule and its requirements, and held that the parties’ dismissive approach to the concept of mediation was “clearly wrong”. The court went further to note that the circumstances of that particular case “screams for an alternate dispute resolution attempt, rather than a purely legal challenge”.

In adjudicating the issue of costs the court also found that the costs of the application could have been avoided had the parties mediated their dispute. The court, in exercising its discretion, made no order as to costs and there is no doubt that the lack of mediation played a roll in coming to this finding.

While this decision offers useful insights into the legal system’s shifting perception of mediation, it also highlights valuable practical considerations that litigating parties should consider in attempting to resolve their disputes. Aside from the clear endorsement of mediation as an appropriate dispute resolution mechanism, the court went a step further and considered the refusal to consider mediation to be a relevant factor in the determination of whether costs should award. Here, Davis J reasoned that

“the costs of the application might well have been avoided by mediation in the same fashion as many of the previous aspects of occupation or relocation have been dealt with”.

While mediation itself remains voluntary, the manner in which parties to a dispute approach mediation should be considered carefully. The increasing use of and deference to ADR, especially mediation, is a relevant factor that may only grow in strength and it appears that going forward mediation will play a significant role in our legal system. The approach that one adopts to this ADR mechanism may no longer be a mere formality, and public policy may require careful consideration and reasoning when electing whether or not to refer a dispute to mediation. The potential benefits of mediation are extensive and exciting, and parties must likewise not overlook the obvious positives of mediation in the resolution of disputes, especially in the face of its increasing presence in our legal system.