Mediation has to precede court action, amended law states

People who try to solve a dispute by going through the courts will now first have to talk it out to try and reach a compromise.

An amendment by the Rules Board of Courts of Law now requires high courts to push for mediation and for lawsuit disputes to be settled out of court.

The amendment, which was published in the Government Gazette of 7 February, became applicable this week.

Attorneys will also be required to confirm whether they have advised their clients to choose the mediation route or not.

Advocate Jackie Nagtegaal, managing director of Law for All, explained that a form 27 would need to be completed to give a concise description of the reasons why a dispute would not be viable.

Judges would also have the power to direct parties in the dispute to consider mediation, she said.

“This decision is very much in line with what’s happening internationally.”

According to a research paper, Access to justice in the South African social security system: towards a conceptual approach, by Mathias Nyenti, the average South African household would need to save a week’s income in order to afford a one-hour consultation session with an attorney.

For black households, which are mostly poorer, the barrier to access the courts was even higher.

But there were other consequences, Nagtegaal said.

“Taking a case to court is not only financially draining, but it can also be emotionally strenuous.

“Most procedures are drawn out, leaving people uncertain about their future. In short, going to court isn’t always an ideal way to solve legal problems.”

Benefits of mediation include:

• Resolving legal disputes faster.
• Avoiding lengthy court battles over months or even years.
• Legal fees are reduced.
• Personal matters remain private.

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