Article by: Durban Divorce Mediator and Attorney - Fawzia Khan
So much has changed during these Covid-19 times, not least of which being that mediation as an alternate dispute resolution was made part of the High Court Rules. As from 9 March 2020, the new Rule 41A of the Uniform Rules of Court came into existence. What does this mean?
In a nutshell, the court rules now require litigants to consider mediation instead of litigating and to inform the court accordingly. The parties are not forced to mediate but their refusal or failure to consider mediation could have negative consequences later on, as the court very well penalise a litigant for not referring a dispute to mediation. The person who initiates any litigation is now required to request the defendant or respondent as to whether they agree to referring the dispute to mediation. There has to be good reasons given why they are of the view that mediation won’t work.
The parties will need to deliver a joint signed minute where they inform the court of their election on mediation and then enter into an agreement to mediate. All the time limits which are prescribed by the rules of court will be suspended whilst the parties are in mediation. Should a party feel that the other party is abusing the process by the suspension, they can approach the court to have the suspension uplifted.
Mediation can be sought at any stage if the parties agree to it. Mediation is thus an affordable, efficient, viable alternative to litigation and has indeed changed the legal landscape. Mediation is definitely a way to reduce the delays and costs one usually encounters when a matter is taken to court.
In divorce mediation for example it allows the divorcing couple to take control of planning their own lives. It goes without saying that one of the successes of mediation lies in choosing the right mediator. I have come across many people who believed that their dispute was simply too bitter, malicious, difficult, you name it, to be resolved through mediation, only to have them change their minds once they submitted their dispute to mediation.
Having parties resolve their dispute in ways which suit them rather than have it being imposed arbitrarily by a judicial officer. The mediator is an independent and neutral 3rd party who will facilitates communications between the disputants so that it results in a win-win outcome for both disputants. Now who will want to argue with that?
The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney.Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.
