14 July 2021
“I have a growing dispute developing with a service provider and it looks like it may head to court. However, with delays and costs of litigation, I was wondering whether the option of mediation is not a better alternative. But can I force the other party to use mediation rather than going to court?”
You are quite correct that litigation, both in terms of time and costs, has become a difficult option for parties wishing to resolve a dispute. Mediation is increasingly becoming a strong consideration for parties who wish to expedite their dispute and also in some instances specialist mediators consider the merits of their respective views.
But, can you force the other party to mediate?
Firstly, it must be considered what your contract says, if anything, about mediation. More and more parties are building mediation clauses into their contracts, in some cases making this a pre-emptory requirement for the parties to have to mediate a dispute.
But what if there is no contract or the contract is quiet about mediation options?
Our courts have held that parties have a general duty to consider mediation and to avoid the delays and expenses of a trial, particularly where mediation may have resolved an issue and avoided unnecessary litigation.
That said, neither our High Court or Magistrates’ Court Rules explicitly prohibit a potential litigant from instituting an action or application arising from a dispute against a party where such a potential litigant did not first attempt to settle or mediate the dispute.
Our High Court Rules have however, introduced a process which to some extent, does require litigants or potential litigants to at least consider, at an early stage of litigation or even prior to commencement of litigation, the possibility of settlement or mediation of a dispute.
Rule 41A of the High Court Rules defines a 'dispute' as meaning the subject matter of litigation between parties, or an aspect thereof and Rule 41A(2) requires that every new action or application must be accompanied by a notice, which notice must be delivered by a plaintiff or applicant together with the summons or notice of motion and by a defendant or respondent with a plea or answering affidavit, indicating whether the party agrees to or opposes referral of the dispute to mediation. These notices must state clearly and concisely the reasons for such party’s belief that the dispute is or is not capable of being mediated. But these notices are only served on the other party and not filed at Court and are served on a ‘without prejudice’ basis, meaning that any admission made by a party in such notices, in an attempt to avoid litigation and resolve the dispute amicably, may not be used against that party in litigation, should negotiation fail. Non-compliance with Rule 41A is also not sanctioned by the High Court Rules meaning that it cannot be forced on a party, but the High Court Rules makes provision for a party to bring such notices, served in terms of Rule 41A(2), to the attention of the Court and for the Court to consider such notices when the Court considers an order for costs of the action or application. Should a party have unnecessarily avoided or refused to mediate, this could eventually bite them when it comes to the costs of litigation.
In as far as our Magistrate’s Courts are concerned, the Magistrates’ Court Rules pertaining to mediation, are of a more voluntary nature and does not contain similar provisions to that of Rule 41A of the High Court Rules. The Magistrates’ Court Rules provide that a party desiring to submit a dispute to mediation prior to the commencement of litigation must make a request thereto in writing to the clerk of the court, who then calls on all parties to the dispute to attend a conference in order to determine whether any of the parties agree to submit the dispute to mediation. Here, there is no sanction for non-compliance or a provision regarding the bringing of the dispute to the court’s attention for purposes of a cost order, making it largely voluntary.
So, if your contract does not force mediation, then the option of mediation will not be a compulsory option that can be forced on parties, even though the consequences of unnecessary litigation could to some extent be imposed on parties. That said, mediation is increasingly becoming a part of the dispute resolution landscape and will undoubtedly also continue to see support from our courts.