Mediation in terms of Section 13 of the Regulations related to Section 27(2) of the Disaster Management Act, 2002

01 May 2020

Conflict Dynamics welcomes the strong commitment by the State to the mediation of all civil disputes threatened or pending against the State and all organs of State.

Mediation, as promoted in Section 13 of the Disaster Management Regulations, may take place before the commencement of litigation or once litigation has commenced. The recently published High Court Rule 41A also encourages the use of mediation, although that applies only once litigation has commenced.

When the right quality of mediation is conducted at an early stage it can be very effective in helping parties narrow the issues or reach a settlement, so the idea that it should be used before litigation has commenced is a good one.

Arbitration is also encouraged by the Regulations, but only in cases where litigation has not yet commenced.

The Office of the Solicitor General has been tasked with the responsibility of assisting the parties arrange these processes, and the Office of the State Attorney is obliged to engage with the party raising the dispute to consider mediation or arbitration.   

The parties may then agree to appoint a mediator of their choice.  If a retired judge is appointed as mediator or arbitrator, presumably on a voluntary basis, no fees will be payable.  Unless the retired judge has been trained and accredited as a mediator, we think this arrangement would be more appropriate for arbitration than for mediation, which involves highly specialised process skills.

The Offices of the Solicitor General and State Attorney will no doubt encourage parties to choose properly trained and accredited mediators.  Mediations conducted by experienced accredited mediators are far more likely to be effective and to result in settlement.  By contrast, ineffective mediation will do little to relieve the State of the burden of defending cases in an already overstretched court system.

Conflict Dynamics has an established panel of trained, accredited, and experienced mediators, who are available to mediate through video and tele-conferencing. We also have a tried and tested case management service for administering mediations. 

Please contact us at Conflict Dynamics to assist you select and appoint a trained and accredited mediator: HERE

- Conflict Dynamics Team