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Mediation & Rule 41A of the Rules of the High Court

Rule 41A, in effect since 09 March 2020, has placed mediation at the forefront of the high court legal procedure. However, it is still not compulsory and sensibly so. High Court litigation requires the services of expert litigation attorneys.

The Rule 41A process cannot be forced onto a party to high court proceedings. Whether or not a party elects to participate in the mediation remains that party’s choice. Clearly there are pros and cons applicable to the process which must be carefully weighed up by expert litigation attorneys.

Cursorily, the process works as follows:

  1. The Plaintiff or Applicant must serve a Rule 41A Notice of agreeing to or opposing referral to mediation, together with a summons or notice of motion.
  2. Furthermore, the Defendant or Respondent must serve a Rule 41A Notice agreeing to or opposing referral to mediation, not later than delivery of a plea or answering affidavit.
  3. If one or both parties decide to oppose mediation, then they have to clearly and concisely indicate reasons in their subrule (2) Notices.
  4. If mediation is agreed to a formal referral to mediation is required.
  5. The parties may at any stage of the proceedings, notwithstanding subrule (2), refer their dispute to mediation, provided that permission of the court is necessary if the hearing has already commenced.
  6. Then if the parties proceed with mediation, subrule (4) provides that the following ‘steps’ occur:
    • The first step: the parties must file a Joint Minute that records their decision to mediate the dispute or any aspect of the dispute.
    • The second step: the parties to enter into an Agreement to Mediate.
  7. The standard mediation practice is that the parties sign an agreement to mediate before mediation and in which they agree on, inter alia, the following terms:
    • Appointment of a suitably qualified mediator;
    • The mediation costs and the costs of the mediator;
    • The time and place of the mediation.
  8. The third step: when the mediation takes place as per the Agreement to Mediate, except as provided by law or discoverable under the rules of the high court, all and any communications and disclosures, whether oral or in writing, made at mediation proceedings are confidential and inadmissible as evidence.
  9. Upon conclusion of the mediation the following must be done:
    • The parties and the mediator have to inform the Registrar and other parties by Notice that the mediation is complete.
    • The parties and the mediator have to file a Joint Minute within 5 days after the conclusion of the mediation, indicating:
      • Whether a full or partial settlement was reached or whether mediation was unsuccessful, and
      • The issues on which agreement had been reached and do not require a hearing by the court.
  1. It is the joint responsibility of the parties in terms of subrule (8)(c) to file the (8)(b) Joint Minute with the Registrar.
  2. Subrule (8)(a) provides that the mediation shall be deemed to have been completed 30 days after the date of the signing of the Joint Minute referred to in subrule (4)(a) and that the suspension of time limits shall also then lapse.
  3. If the mediation concludes before the 30 days, the parties may file the Notice in terms of subrule (7)(a) that the mediation has been completed. This is to ensure that the 30-day suspension of time limits for court processes can be uplifted earlier.
  4. No offer or tender made without prejudice in terms of this sub rule shall be disclosed to the court at any time before judgment has been given.
  5. Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation.
  6. Rule 43(3) also provides that if a settlement has been reached the attorney for the Plaintiff or Applicant must inform the Registrar and Rule 41(4) also provides that any party to a written settlement signed by all of the parties, may apply for judgment in terms of the settlement with five days’ notice.
  7. Unless the parties agree otherwise the parties must pay the fees of the mediation equally.
  8. In terms of subrule (9)(b), when an order for costs of the action or application is considered, the court may have regard to the subrule (2) Notices or any offer or tender referred to in subrule (8)(d).
  9. Any party may bring the above notices or offers to the attention of the court.

Article published courtesy of RexLex™ Mediations & Arbitrations

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