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Article by listed attorney: Fawzia Khan

I had the privilege of participating in a 5-day mediation seminar in early October 2014, which was hosted by the Law Society of South Africa and held in Pietermaritzburg. Even though it meant being away from the office for the entire workweek and travelling to and from Pietermaritzburg every day, leaving home at the unearthly hour of 6h30 every morning, I found the mediation seminar very fulfilling and useful. It was presented by two of my esteemed colleagues, Joanna Mayne of Pietermaritzburg, and Mahomed Essack of Pinetown, both of whom are not only practising attorneys but also highly skilled and knowledgeable mediators.

Part of the seminar was to bring mediators up to speed on the court-annexed mediation and to focus on civil and commercial mediations. There has been a delay in the implementation of the court-annexed mediation rules. Initially it was scheduled to take effect as from 1 August 2014, from this has now been pushed forward to 1 December 2014. The mediation rules will be rolled out in the Magistrate’s Court first (both district and regional court). It could later on expand into the High Court. Court-annexed mediation may become mandatory later on, but for now the mediation will be voluntary in nature.

The idea behind court-annexed mediation is to encourage early settlement of any dispute between the parties, either before or after litigation proceedings have commenced. The Rules Board for Courts of Law has indicated that the objectives behind the Rules is to give effect to the relevant provisions found in our Constitution regarding the right of a person to have any dispute resolved in a fair public hearing before a court or other independent impartial tribunal, as well as a Resolution of the Access to Justice Conference which was held in 2011, to introduce court annexed mediation as an alternative dispute resolution into the court system. This is seen as a way to curb rising legal costs and reduce the burden of the court trial rolls. Court annexed mediation is a new concept within our judicial landscape and hopefully will be used with success once implemented. It will certainly meet its criteria of making access to justice achievable and fair and for all our people.

Whether parties to a dispute seek private mediation or choose the courtannexed mediation process, the benefits of mediating as opposed to litigating cannot be overstated. Even though I run a successful litigation practice, having trained as a mediator myself years ago, I am a firm advocate of and believer of mediation. One of the hallmarks of mediation is to seek to preserve relationships between disputant parties, which could otherwise become strained or in some instances completely destroyed, if the parties choose to resolve their dispute through the adversarial judicial process. Whilst the mediator will control the mediation process, the parties themselves are free to determine what outcome they reach, often resulting in a “win-win” situation for both parties.


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