Mediation and the challenges of the 21st century in South Africa

The complexity of mediation in South Africa has increased over the years, and technology has become a useful tool to manage various aspects of it, but human interaction is still central to the process.

Mediation has emerged as a vital alternative dispute resolution (ADR) mechanism in South Africa. It offers parties involved in legal disputes an opportunity to resolve their issues outside the traditional court system, often resulting in quicker, more cost-effective, and mutually satisfactory outcomes.

This article discusses the evolution of mediation in South Africa, and the challenges it currently faces.

The Evolution of Mediation in South Africa

Mediation in South Africa has developed over the years, in response to a growing backlog of cases in the courts, the expense and duration of court proceedings, and the desire for more client-centric dispute resolution options.

In 1984, the Department of Justice introduced the Small Claims Court, as well as legislation enabling “Mediation in Certain Civil Cases.” This enabled broader access to justice, particularly for those members of society without the means to fund significant litigation costs.

While South African courts have supported mediation as a form of dispute resolution, recent developments have introduced systemic changes, resulting in greater use of mediation.

In 2014, the Magistrate Court Rules were amended to introduce mediation as a way to resolve disputes, either before litigation commences or after its commencement, but before judgment has been given.

The South African Law Reform Commission invited stakeholders in 2017 and 2019 to provide input on the proposed introduction of an ADR system, which included mediation as a dispute resolution option. The new system would include the accreditation of mediators, establish an entity responsible for regulating mediators’ professional conduct, and introduce mandatory mediation. A discussion paper (including a Mediation Bill) is in preparation.

In 2020, Rule 41A was incorporated into the Uniform Rules of the High Court. This rule requires plaintiffs to consider mediation as a potential option for resolving a dispute. If parties elect to move forward without mediation, they must provide reasons for this decision.

Challenges Faced by Mediation in the 21st Century

Despite these positive developments, several challenges have emerged that hamper the effectiveness and accessibility of mediation in South Africa. The government’s response to the COVID-19 pandemic significantly accelerated the use of technology for remote mediation, but it has been criticised. Although technology has expanded access to mediation services, it also presents challenges related to digital literacy, security, and ensuring the confidentiality of mediation proceedings.

While online mediation offers convenience, it also raises concerns about cybersecurity, data privacy and, perhaps most importantly, the loss of personal connection and interaction between parties and mediators.

In the rapidly-evolving landscape of dispute resolution, Artificial Intelligence (AI) and automation has emerged as a transformative force, revolutionising the field of mediation and offering innovative solutions to enhance the efficiency and effectiveness of the mediation process, such as:

* Document management: AI can assist to streamline the management of legal documents, contracts and case files, making administrative tasks related to document review and organisation more efficient. This allows mediators to focus on the core mediation process.

* Data Analytics and Case Assessment: AI can analyse vast amounts of data quickly, allowing mediators to assess cases, identify patterns and predict potential outcomes more accurately.

* Scheduling and Logistics: Automation can handle scheduling, communication and logistical aspects of mediation.

Despite AI’s ability to enhance the efficiency and effectiveness of mediation, particularly in administrative and data-driven aspects, the core role of mediators to facilitate communication, build trust, manage emotions, and guide parties toward mutually agreeable solutions remains essential and cannot be replaced by technology. Successful mediation in the future is likely to involve a harmonious blend of human expertise and AI-driven support.

Over the years, disputes have grown in complexity. Mediators must adapt to handle intricate commercial, family and community disputes effectively, as well as the interplay between AI and human expertise. Training that supports the integration of AI ought to be advocated, and certification standards for mediators must be consistently enforced to ensure that parties receive competent and effective mediation that operates alongside and in conjunction with the formal legal system. Ensuring a smooth integration between mediation, technology and the courts, and fostering a culture that encourages parties to consider mediation before litigation, remains a challenge.

Addressing these 21st century challenges in mediation requires ongoing adaptation, training and innovation. It also necessitates the development of clear regulatory frameworks for online mediation, and ethical guidelines that account for digital environments. A commitment to promoting public awareness and maintaining trust in mediation as a valuable tool for resolving disputes in the modern world is fundamental.

Michael Straeuli is a Partner and Amaarah Mayet an Associate | Webber Wentzel.

This article first appeared in DealMakers, SA’s quarterly M&A publication.

DealMakers is SA’s M&A publication.
www.dealmakerssouthafrica.com