There are two types of mediation processes associated with court rules:

• Court-affiliated (or court-connected) mediation is a process by which rules are designed to encourage parties, after the institution of litigation, to consider mediation before proceeding further. These rules do not make mediation compulsory.
• Court-annexed mediation is where the rules of court require the parties in certain types of matters, after initiating litigation, to actually participate in the mediation process before continuing with their litigation. Mediation is mandatory before litigation continues.

It must also be noted that when countries have a mediation process adopted into their court rules it does not necessarily mean that mediation outside of these rules is not possible. Mediation is generally always possible as an alternative dispute resolution tool. For example, see Rule 2(b) of Lesotho’s Mediation Rules below.

Turning now to the Lesotho High Court’s approach to mediation…

High Court Mediation Rules

Lesotho is one of the countries that has adopted a set of court rules governing mediation when litigation proceedings have been instituted.

These rules govern a court-annexed mediation process. In other words, the parties do not have a choice but to mediate before continuing with litigation.

27 May 2011 saw the publication of Lesotho’s High Court (Mediation) Rules (Rules). These Rules can be accessed here.

The Rules are applicable to all civil actions and applications filed in the Lesotho High Courts (Rule 2). Rule 2(b) specifically confirms that parties are not precluded from agreeing to mediation outside of the court programme.

Should the mediation take place through court-annexed mediation then the mediator is appointed by the court. The mediator must be trained, competent and certified by the court (See Rule 3).

Process

The cases that were pending before the court at the time of the adoption of the Rules could be referred to mediation by the presiding judge before the entry of a final judgment (Rule 7(1)). Given that it has been over 10 years since the introduction of these Rules, it is unlikely that this Rule is of any practical significance any longer.

More relevant are those matters instituted after the commencement of the Rules. In those instances:

• parties must file a brief statement in the pleadings as to whether they consent or oppose referral to mediation under the Rules (Rule7(2));
• in the absence of such a statement it will be presumed that objections to mediation under the Rules have been waved (Rule 7(3));
• in relation to those matters which are referred to mediation, all litigation activities and time limits shall pend from the date of referral to mediation until the mediator has issued and filed their report upon completion of the mediation process (Rule 7(4);
• where a statement has noted an objection to mediation the court shall issue a notice within 15 days after the filing of the first defence inviting the parties to attend a hearing before the mediation administrator (designated under Rule 5) where the objection will be raised (Rule 8(1);
• as per Rule 8(2), at that hearing the administrator shall issue directions in relation to:
• those issues that are to be mediated;
• the time within which the mediation session is to be completed;
• whether the parties are required to attend such session in person; and
• any other matter the administrator feels is necessary or desirable to the facilitation of the mediation process;
• should a proper cause be shown which validates the objection to mediation the administrator may make recommendations for the exception of the matter from the mediation Rules (Rule 9);
• Rules 10, 11, 12, 13, 14 and 15 then deal with the conduct of the mediation itself;
• Rule 10 emphasises that unless an exemption is obtained from the administrator, the mediation process must be completed within 30 days of the mediator’s receipt of the order to mediate;
• Rule 13 deals specifically with matters where Government or an entity of Government is party to the mediation. It focuses on ensuring the representative mediating on behalf of the Government has the necessary authority;
• Rule 16 confirms the confidentiality of the mediation process, with certain applicable exemptions;
• Rules 19 and 20 deal with instances where settlement is reached during the mediation process; and
• Rule 20 also deals with a mediator’s proposals for the parties to discuss further efficient case development or further exploration of settlement.

Rationale for introducing the Rules

A paper published introducing the Mediation Rules highlights that the reason for introducing the process is that the judiciary’s goals and functions include “providing easy access to justice and the speedy resolution of cases”.

Mediation is meant to be a dispute resolution solution introduced by the courts as an alternative to the adversarial dispute resolution of litigation.

Mediation is also designed to be quicker and to avoid the costs of lengthy litigation.

The added advantage of successful mediation is that it reduces the backlog of cases before the courts.

The paper also confirms that the choice of court-annexed mediation, as opposed to court-affiliated mediation, was deliberate and purposeful.

The paper referred to is titled, “Part I: The Introduction of Court Annexed Mediation in the High Court and Commercial Court of Lesotho”, and can be found here.

Conclusion

When considering litigation, check with your legal advisors as to whether mediation is included in the relevant court rules, and what it means if it is.

The appropriateness and timing of mediation, court related or otherwise, is fact and rule dependent. Although different from arbitration and litigation, mediation does require a level of strategic manoeuvring and we recommend you seek legal advice when considering mediation as an alternative dispute resolution mechanism and / or investigating how certain court rules deal with mediation once litigation proceedings have commenced.

Have a discussion with your legal advisors on whether mediation outside of a court assisted or mandated process is desirable in the circumstances surrounding your matter.