The Role of Mandatory Mediation in the Transformation of the South African Civil Justice System

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.