The advent of court-based mediation in South Africa

By Cornelia van Heerden and Izak Potgieter; Heyns and Partners Inc.

While many of South Africa's trading partners have opted for mediation in civil and commercial disputes, the South African legal system has been slow to adopt mediation as an alternative dispute resolution mechanism. Mediation is only actively pursued in a handful of matters which it would benefit, primarily in the area of labour disputes and, to a lesser extent, in divorce matters.

This is about to change as the South African legal system braces itself for the introduction of court-based mediation for a trial period. lt would theoretically introduce a paradigm shift in the traditional litigation focus and adversariaI root of South African legal disputes.

Broadly speaking, the mediation rules will introduce voluntary mediation during which Party A invites Party B to engage in a mediation process to solve the dispute. The cost of the mediation process will be at the inviting party's expense. Party B may refuse to attend, at the risk of a trial court finding the refusal to be unreasonable and invoking punitive costs. The rules make provisions for referring a dispute for mediation before or after a summons has been served. In addition, the presiding judicial officer may refer a matter for mediation at any stage during litigation prior to judgment.

The hope is that court-based mediation will provide parties with access to relief currently denied by an overburdened court and financial restraint due to prohibitive legal costs.

Cornelia van Heerden, Director
Heyns and Partners Inc., Goodwood, South Africa
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T: +27 21 590 72 00 W: www.heyns.co.za

Izak Potgieter
Heyns and Partners Inc., Goodwood, South Africa
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T: +27 21 590 72 00 W: www.heyns.co.za

Cornelia van Heerden joined Heyns and Partners Inc. in 1990 as an attorney and conveyance. She was appointed a director in 1993. Cornelia specialises in High Court litigation in the area of claims for damages in respect of personal injuries, damages resulting from property transactions and contracts, and family law.

lzak Potgieter joined Heyns& Partners Inc. in 2011 as a candidate-attorney and was subse-quently admitted as an attorney in 2013. lzak currently specialises in debt collection and various commercial law litigation matters.

Heyns and Partners Inc. was founded in 1958. In 1986, the firm started to operate and conduct business under its current name. lt is privileged to represent a very diverse and extensive client base, both corporate and individual, offering litigation, conveyancing and notary services.

Publishes: January 2014