The South African court system has remained almost immune to changes that have occurred in other jurisdictions that also adhere to an adversarial system of litigation. Unsurprisingly, sustained and justified criticism has been directed at the inordinate delays in getting cases into court and then, once in court, the length and consequent costs of litigation.
For the vast majority of the population, costs represent an almost unbreakable barrier in the path to vindicating their rights. If they are fortunate to succeed, then they are faced with an archipelago of appeals from the high court (or magistrate’s court) to a full bench of the high court, then the Supreme Court of Appeal, and if their opponents have deep pockets and lawyers with some imagination, to the Constitutional Court.
So, a litigant who patiently waits to have her day in court and then survives the financial burden of a lengthy trial is all too often confronted with an opponent who has read the manual on Stalingrad litigation, which may result in two or maybe three appeal hearings.
Some help is finally on the way. Thanks to the sustained debate initiated by former Chief Justice Sandile Ngcobo about access to justice, the South African legal system has discovered alternative dispute resolution (ADR). It is not that South Africa has not gathered considerable experience in the area of ADR; after all, for the past two decades both mediation and arbitration have been regularly employed in the fraught area of labour relations. But within the context of civil litigation, mediation has been effectively ignored by the court system, the growing parallel development of commercial arbitration notwithstanding.
Now the department of justice has announced its intention to commence a pilot mediation project in selected magistrate’s and high courts with a view to a nationwide roll-out. To this end, a set of draft rules for mediation have been published which provides a clear indication as to the purpose and scope of the initiative.
The draft rules provide that, both in the case of trials and applications, the dispute must be referred to a dispute-resolution manager to facilitate a process of mediation of the dispute between the parties. In addition, the court may do the same before the hearing commences. The dispute-resolution manager then appoints a mediator to deal with the dispute. If the mediation fails the dispute goes back to court.
The parties can refuse to go down the mediation avenue. If the refusal to mediate is deemed to be unreasonable by the court, a costs order can be made against the party that refused to participate in the mediation option.
The draft rules provide that a mediator cannot make findings of law or fact or the credibility of any party. In addition, the draft rules make clear that the discussions held and disclosures made during the process are without prejudice and thus have no binding quality in any court proceedings that might follow. The process must be completed within a fixed time period and, if successful, the mediator will assist the parties in the drafting of the settlement agreement.
Understandably, the draft is not without problems. The mediation system will require proper training and accreditation of mediators and dispute-resolution administrators, for without the necessary skill the entire project can go awry.
All too often legislation is introduced without sufficient attention given to the infrastructure required to bring the proposal into successful reality. In this case, further attention is needed as to the possible role of private mediators who are appropriately qualified.
No single organisation should monopolise the process. A potential problem is that the system is going to be run by the department of justice, whereas the appropriate body to supervise court-run mediation is the office of the chief justice. After all, given the fuss that the government makes about separation of powers, this is surely an exemplary case of ensuring that the executive gives court matters a wide berth.
There has been much muttering in the legal community about the proposal. In the first place, as noted, there has been concern that the spoils of mediation will be captured by one organisation.
This can surely be solved by allowing all suitably qualified alternative mediators to participate. There has been similar criticism of the compulsory nature of mediation. But here there should be far less concern. No one is compelled to engage in mediation but, if the court considers the refusal to be unreasonable, then it can impose an adverse costs order on that party.
Also, if unnecessary, costly and time-consuming litigation is to be minimised so that courts are accessible to those truly in need, a move to mediation represents an important step in the promotion of more accessible justice for all. Deep pockets, unreasonable lawyers and overly obdurate litigants should be a thing of the legal past if this scheme is successful.