“It’s not the rules that are the problem, it’s because the drivers don’t obey them! That is why these accidents happen!”. What was my otherwise evenly tempered husband frustrated about as we were heading up to Hilton on Saturday morning? The trucks on the N3. The ones who disregard the rules of the road. The ones who continuously veer into the fast lane, often without using an indicator, and at short notice.  On a good day, the collateral damage is (only) anger, frustration and delays. On a bad day, the collateral is much more dire – heartache of losing loved ones and panic – you know, the stories which fill our social media feeds.

In contrast to Saturday’s drive, my experience on Monday evening as I drove back from Pietermaritzburg was smooth as ever. Quick and easy, I was home in no time. Why? Because the police were out in their numbers throughout my route. The reassurance that "the law" was being enforced meant that the truck drivers kept to "their" lanes, aware that they had to abide by the rules of the road or face the consequences.

A lot in life would be easier and simpler if everyone obeyed the rules. Life would be even better if all key role players understood the rules and were genuinely behind the purpose of what the rules were trying to achieve.

The Department of Justice and Correctional Services (Department) and the judiciary have been dealing with the legal equivalent of the N3 – our congested court rolls – and the resulting collateral damage (delays and frustration for attorneys and their clients) for years. 

A few years ago, the High Court Rules were amended to introduce mediation as a form of dispute resolution. The purpose was to ease the burden on the court whilst at the same time given parties the alternative option of a less expensive and quicker means of resolving their disputes with a neutral third party, the mediator, to facilitate the process. However, litigants remains resistant towards mediation. Because mediation is voluntary, the decision to mediate is in the hands of the parties. So, if either party is against mediation for whatever reason, or worse, does not understand the process and its benefits, that is an end of the matter and the litigation proceedings will ensue for years to come.

It is unfortunate that litigants appear to resist mediation despite its benefits: it is a process which affords them the opportunity to work out their issues on a confidential basis. These discussions do not take place a court room scenario which means that it is:

• less stressful;
• a means of giving them control of the process and the outcome;
• less expensive;
• less risky; and
• more expedient.

Notwithstanding the slow uptake in mediations, the Department remains optimistic.  It has amended the Magistrates' Court Rules to align with its High Court equivalent, regarding the mediation of disputes, and these come into effect on 9 June 2023.  I however am not so optimistic as I realise that the litigants themselves are not fully aware of what the mediation process entails and its benefits.

A common reason provided by litigants to avoid mediation is that “there is no dispute between the parties capable of mediation”. Yet there are only a few disputes which, by their very nature, cannot be mediated. These include:

1. Where a precedent needs to be set in case law.
2. Where the outcome requires the sanction of a public official.
3. It is a matter of public interest where one ought not to compromise his/her rights.
4. There is no bona fide dispute. The party being sued has defended the matter without any merit and mediation is used as a means of delaying the inevitable and/or for information gathering. 
5. A party is seeking an urgent remedy that only a court can provide.

Another reason for not mediating given by litigants is that the party instituting the legal proceedings say that they have already tried and failed to settle the dispute and therefore have no appetite for mediation. Usually, however those negotiation attempts take place only in the form of positional bargaining (or haggling) characterised by misrepresentations, withholding material information, making threats and staging walkouts.

As such, more than optimism is required for the ideals of the amended Magistrates’ Courts Rules to be achieved. If litigants and their attorneys are serious about resolving disputes efficiently and with less costs, then a more considered approach must be taken when deliberating whether the matter can be effectively mediated. This consideration can only be done properly if all role players have a better understanding of the mediation process and its benefits and were genuinely behind what the rules were trying to achieve.  This would certainly make the journey to resolving disputes that much smoother.

* Nerisha Besesar is an internationally accredited mediator by the Centre for Effective Dispute Resolution (CEDR).