Mediation Will Unclog Court Backlog

Gauteng High Court Judge Stuart Wilson believes the recent directive for civil litigants to seek mediation before bringing their case to the court will decrease case backlogs.

I am a high court judge. Every day, I help people resolve their disputes according to law. There’s nothing I don’t like about the work. I find every part of the law interesting. I take genuine pleasure in working out how the law applies to the hundreds of contested cases I have heard, and in giving the parties a decision that will help them on their way.

Still, the litigation process depends on litigants and their lawyers doing a lot of work to define the nature of the dispute I and other judges have to decide, and to produce the evidence that we need to hear to resolve the dispute for them.

At the moment, though, the vast majority of trial actions we are asked to hear are brought to us before they are ready to be heard, because the parties have not done the work necessary to define the dispute they want us to resolve.

As a result, the number of trials in which evidence is actually heard and for which judgment can be given, is a small fraction of the number of trials in which the parties are just not ready, and probably never will be ready, to present their case.

Inevitably, the matter settles or is postponed with nothing having been resolved. When the parties settle at the outset of the trial because they’re not ready to proceed, it takes ten minutes to review and endorse the agreement. But the rest of the time allocated to hear the trial goes to waste. Sometimes it’s the rest of the day. Sometimes it’s the whole week.

That time could be spent hearing other cases in which people can say exactly what it is they want decided. These are cases in which a judge can actually do their job.

This is what is meant when people say the high court’s trial rolls are “clogged”. There are far too many cases which are not ready to be decided. Many, if not most, of these cases will likely never need to be decided because, once the parties have defined their disputes properly, they often agree how those disputes should be resolved without the need for a judge.

The number of unprepared cases enrolled in my trial court dwarfs the number of cases that are ready to be heard before me. The result is that people who need the court’s help –- some of them desperately –- must wait months or years for a hearing.

Recently, a directive was introduced in the Gauteng division to address this problem. The directive is this: before you get a trial date, you must have attempted to resolve your case through mediation. This means a trained mediator must look at your case and engage with you and your opponent to see if an agreement on how it should be resolved can be reached.

If the matter is resolved, so much the better. If not, the mediator must write a report to the judge in which they certify the matter is not settled, and set out the issues that remain in dispute between the parties. This means when the matter comes to a judge, they will have some idea what the dispute is really about. It also increases the likelihood of the dispute being settled well before the case comes to a hearing. Litigants who know what they’re really arguing about are more likely to settle their differences amicably.

The new directive has been criticised. But I think much of the criticism misses the point.

Some say that the directive breaches the right of access to court. But this misunderstands what that right protects. The right in section 34 of the Constitution is “to have any dispute that can be resolved by the application of law” heard by a court or “another independent and impartial tribunal or forum”. But in order for a dispute to be “resolved by the application of law”, the parties need to have defined the dispute.

Another criticism is that asking the parties to pay for a mediator will make litigation more expensive. I don’t see how. Whether by a mediator or by the parties’ lawyers, a dispute must be defined before it comes to court. Someone must be paid to do the work necessary to get a dispute to the state needed for a judge to resolve it. Mediators may well be able to do that more cheaply than lawyers. And if the dispute is settled, there are no further costs.

It has also been said that the directive is “judicial overreach”. But section 173 of the Constitution gives the High Court the power to protect and regulate its own process. Requiring the parties before the court to define a dispute judges can actually decide is at the very heart of that power.

If the mediation directive is successful, it would speed up trial litigation in Johannesburg and Pretoria by several orders of magnitude. It would make sure people with genuinely justiciable disputes have their cases heard promptly and fairly. It would slash the cost of litigation for those whose disputes can be settled. It would also lower the cost of disputes that ultimately need a judge by more closely defining what it is the judge is required to decide. It would, in other words, expand access to justice to the benefit of thousands of people who must presently wait years longer than they should for their day in court.

Stuart Wilson is a judge of the Gauteng High Court.

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