Abstract:
This study highlights the complexities associated with South Africa’s adversarial civil
justice system, and analyses how mediation as an alternative dispute resolution
procedure can play a role in remedying issues relating to high costs, delays and
overburdened court rolls. The research outlines the historical development of
mediation in South Africa and investigates whether the mandatory mediation models
found in South African family law and labour law have effectively transformed South
Africa’s civil justice system.
The study assesses the mediation rules contained in the Magistrates’ Court Rules and
Uniform Rules of Court, and determines the potential the rules have in reforming the
South African civil justice system. This research also investigates the benefits and
shortcomings of the mandatory mediation models that have been adopted in Canada
and Australia. A comparative analysis with South Africa’s civil justice system is
conducted, and recommendations are made for instances that are applicable to the
South African context. The research critically discusses the constitutionality of
mandatory mediation, and the advantages and disadvantages associated with the
procedure.
This mini dissertation argues that non-adversarial procedures such as, mandatory
mediation are effective in remedying some of the challenges faced by South Africa’s
civil justice system. However, the research also determines that mandatory mediation
is not appropriate for all civil disputes, andthe benefits attached to an adversarial
justice system should not be lost in the pursuit of applying non-adversarial procedures.
