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Developments in Mediation, the SA Law Reform Commission & the NPA ⚖️

Dear Mediator

Our industry is seeing incredible developments, with legal concepts and principles relating to mediation crystallising into case law and legislation.

On 5 May 2023, a new set of rules were published in the Government Gazette which in effect brings Rule 41(A) down to Magistrates' Courts in South Africa. The rules will come into operation on 9 June 2023.

From 1 September 2021, Judge President Makgoba's directive on Rule 41A of the Uniform Rules of Court has compelled legal practitioners to mediate before the High Court will hear matters. Where the rule was not complied with, matters were struck from the roll. The directive was, however, issued for Judge President Makgoba's own province (Limpopo) and is not binding on all High Courts. The legal precedent in MB v NB does however still apply. In this judgement, Judge Brassey limited the fees legal counsel for failing to inform their clients about mediation.

On the 1st and 8th of June 2022, the SA Law Reform Commission held what seems to be its final round of stakeholder consultations on the ADR in Family Matters discussion paper 148.

The intent of the Family Dispute Resolution Bill is to mandate mediation (as with Rule 41A), but focused specifically on family disputes (i.e. divorces, parenting plans, etc.) across not just the 13 High Courts, but also the 524 Lower Courts. "The proposals therefore include, amongst others, the mandatory attendance by the disputing parties of a standardised information and education programme, as well as a mandatory mediation session, before a court process may be initiated." (extract from the SALRC's media statement). The newest media statement reinforces this intention.

Johannesburg High Court
Photo by Ashraf Hendricks, Credit: Ashraf Hendricks/GroundUp

Mediation is commonly used by judiciaries across the globe to alleviate congestion at courts. Given the "massive case backlogs" at courts, the judiciary's media statement and the relatively small number of practicing mediators in the field, we predict a bottleneck in implementation following new legislation - unless a sufficient number of mediators are trained and accredited.

The SALRC is currently drafting a bill to formalise the SA mediation industry by way of government regulation and recognition of mediation as a formal, standalone profession. More details to follow as they become available.

These developments are set to impact our industry and the public's access to justice on a scale never seen before.

If you are determined to stay ahead of the curve, now is the time to establish your practice.

Warm regards

Team Mediation Academy


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