Following a Board of Directors’ directive, the Rules Committee was requested to review the existing Mediation Rules (the existing Rules) and to produce an updated set of Rules for approval by the Board. The updated Rules were submitted to the Board by the Rules Committee and were approved by the Board on 13 July 2023 (the new Rules). They have also been published on the Association’s web page. https://www.arbitrators.co.za/home/dispute-nominations/mediation-documents/
The Need for Review
The existing Rules had been published in 2012. With the increasing awareness of mediation as a dispute resolution mechanism, both in South Africa and Internationally, and given the development of the very successful relationship between the AOA and Prof Jonathan Dingle and the London School of Mediation, the need to update the existing Rules became apparent.
The AOA prides itself on being at the forefront of Alternate Dispute Resolution as reflected in the new Rules for the conduct of Arbitrations. To maintain that position the Board directed that the Mediation Rules be reviewed to bring them into line with best practice Internationally.
Key Changes to the Mediation Rules
Although they are headlined as Mediation Rules, they are, of necessity, procedural guidelines and the new Rules have been updated to reflect this status. The necessity to permit the mediator to have the widest possible discretion to assist the parties in reaching a settlement is recognised and changes were made accordingly.
The general structure of the Rules has been maintained. In line with the guideline status, reference to terms has been removed and replaced with ‘Rules’.
The essential element of a mediator’s impartiality has been strengthened and a requirement to sign a Mediator’s Declaration has been added. The appropriate declaration has been drafted and forms part of the documents accessible on the AOA web site.
The Duty to Disclose has been amplified by imposing a continuing obligation to disclose arising out of any changed circumstances.
Importantly, the Mediator’s Powers and Duties have been significantly revised with the emphasis on reaching a mutually acceptable resolution. The obvious, but previously unstated, absence of authority to impose a resolution on the parties is now expressly stated. While given unfettered discretion as to how to conduct the mediation, guidance has been provided by way of suggestions regarding the submission of initial statements; obtaining expert advice with the agreement of the parties; and the making of recommendations for resolution of issues, if requested by the parties.
Aspects of the audi alteram partem rule of natural justice may be waived in mediation given the possibility of meetings and communications taking place individually with the parties. The right to meet and to communicate separately with the parties has been expressly set out in the new Rules, as well as the right to receive information in confidence from one party and not disclose this to the other party, when so requested. This goes hand in hand with the obligation of the mediator and the parties to conduct the mediation in good faith.
Any settlement reached has now been stated to be enforceable in any court having jurisdiction.
The Mediator’s Declaration
A signed declaration is now required providing details of the mediator and reflecting the mediator’s acceptance of his or her duties as reflected in the Rules. This is an essential aspect of the mediation process. This declaration also requires the mediator to state that he or she has the appropriate capacity in terms of availability to conduct the mediation in a cost-effective manner within the time limits, if any, agreed between the parties or as provided in the new Rules.
It is to be hoped that mediators, whether appointed by the AOA, or when selected and appointed by agreement between the parties, will find the new Rules of assistance. The Association commends the use of the new 2023 Rules and trusts that members and others who access the Rules via the web site, will benefit from the application of the new Rules.
CHRIS BINNINGTON Pr Eng
Director and Chairperson of the Rules Committee
ASSOCIATION OF ARBITRATORS (SOUTHERN AFRICA) NPC