UNIFORM RULE 41A-MEDIATION

Rule 41A poses as an alternative to the adversarial legal justice system by allowing matters to be referred and settled through mediation.

The rationale behind adopting Rule 41A rests on the need to promote mediation as a dispute resolution mechanism between parties contemplating litigation.

The rule allows parties to consider mediation as a viable option from the outset by compelling them to take into consideration a non-adversarial dispute resolution mechanism when faced with the reality of litigation.

It is important to note that the agreement to explore litigation does not preclude the parties involved from resorting to litigation if all else fails.

Furthermore, Rule 41A does not compel parties to mediate, but rather compels them to consider referring their dispute to mediation.

The large number of pervasive defects in the South African justice system necessitates legal reform. These issues include high litigation costs, court backlog, protracted judgments backlog and complexities which hinder swift and efficient access to justice.

A court is empowered to hand down an adverse cost order against the party who refuses, without good reason, to refer the matter to mediation.

Finally, Rule 41A also provides access to justice which encompasses physical access,
economic affordability, reliable outcomes, efficiency and expediency and non-discrimination, whilst taking due consideration to the diversity of those seeking justice.

Advocate K. Gobinca