Discussion Paper 168: Project 94
Call for comments opened 29 January 2025 Share this page:Submissions must be received by no later than 30 April 2025
The South African Law Reform Commission (Commission) invites you to comment on its PROJECT 94 Discussion Paper 168, which addresses the need for the adoption of a generic mediation statute dealing with commercial, civil and community mediation.
On 22 November 2019, the Commission published its project 100A Discussion Paper 148 which dealt with Care and Contact with Minor Children: Alternative Dispute Resolution in Family Matters. In December 2024, the Commission approved its report on this investigation for submission to the Minister of Justice and Constitutional Development. Discussion paper 168 on mediation in commercial, civil and community mediation does therefore not deal with mediation in family disputes.
Discussion Paper 168 was prepared to elicit responses and comments from interested parties and to serve as a basis for the deliberations of the Commission. The Commission will consider public responses and comments to the discussion paper and test public opinion about solutions identified by the Commission. Based on such responses, a report containing the legislation) will be submitted to the Minister of Justice and Constitutional Development for consideration for tabling in Parliament.
The objectives of the Mediation Bill in clause 2 are to minimise citizen frustration and delays in justice delivery by providing a standard legal framework for the fair and efficient settlement of disputes through mediation; promote and encourage mediation as an appropriate method of dispute resolution; afford parties the opportunity to resolve their disputes expeditiously and cost-effectively; provide for the regulation of the mediator profession; provide for the regulation of the procedure for the referral of disputes to mediation; direct the mediation process; and provide for the enforcement of international commercial mediation settlement agreements under the rules of procedure and the conditions laid down in the Singapore Convention.
Discussion paper 164 and the draft Mediation Bill deal with :
Definitions
The interpretation of the Mediation Bill
The application of the Mediation Bill
Arrangements for the certification of mediators
The appointment of a Mediation Council
The functions and powers of the Mediation Council
Codes of practice for mediators
Funding of the Mediation Council
Agreements to mediate
The appointment of a mediator
The termination of the appointment of a mediator
The effect of mediation on time limits
The suspension of proceedings which are subject of a mediation agreement
The immunity of a mediator
The procedure to be followed at mediation and the role of a mediator
The commencement and time-limit for completion of a mediation
The submission of information at mediation to the mediator
The confidentiality of a mediation process
Legal privilege in relation to mediation proceedings
The right of disputants to assistance by a legal practitioner or another person
Mediated settlement agreements and their enforcement
Termination of a mediation
The certification of a mediation outcome
Unconditional and without prejudice tenders
Role of experts and non-parties at a mediation
Costs of mediation
Mandatory mediation
Categories of disputes subject to mandatory mediation
Parties may in certain circumstances be exempted from mandatory mediation
Notice by parties agreeing to or opposing mediation
The general powers of court
Information and education documents
The roles of legal practitioners
The functions and duties of clerks and registrars
The Chief Justice and Heads of Court may make directives and Rules Board may make Rules
The enforcement of international commercial mediation settlement agreements
Regulations to be made under the Bill.
Find here: Discussion paper 168 Project 94
SALRC Media statement: Discussion paper 168 mediation
The Commission proposes that community mediation within communities and at local government level should be promoted by the proposed legislation. However, the proposed legislation did not attempt to exhaustively regulate community and further discussions with community mediators and local authorities should be undertaken. Could funding be allocated at local government level to support and grow existing community mediation programmes in our community like the Sri Lankan model we note in the discussion paper? Codes of conduct or code of ethics have been adopted in Nepal, Sri Lanka, and Trinidad and Tobago, which apply to community mediators. A further question is whether stakeholders agree with our view that the envisaged Mediation Council be tasked with the adoption of a code of conduct for community mediators and if so, what issues should it address? We therefore request our stakeholders who are active in the community mediation field in South Africa, to engage with the Commission on the regulation and funding of community mediation and on promoting mediation in resolving our community disputes.
Comments can be emailed to Mr Pierre van Wyk at [email protected] and Dr Dellene Clark at [email protected] by no later than Wednesday, 30 April 2025
Enquiries can be directed to Mr Pierre van Wyk on tel (012) 622 6317 and Dr Dellene Clark on tel (012) 622 6307 (until 28 February 2025)
The Commission plans to host in-person and virtual workshops on discussion paper 168 and the Mediation Bill. Once these arrangements have been finalised the Commission will issue a further media statement alerting stakeholders to these arrangements. However, stakeholders are invited to express their interest to attend the planned workshops by way of email to Mr Pierre van Wyk and Dr Dellene Clark. We further request stakeholders who are active in the community mediation field, to confirm their preference for the attendance of virtual or in-person workshops
ISSUED BY THE SECRETARY, S A LAW REFORM COMMISSION, CENTURION DATE: 27 January 2025