The Worth of Mediation in Criminal and Civil Litigation

Rylan Naidoo – Candidate Attorney

As the crime rate rapidly grows in South Africa, litigants are under a tremendous amount of pressure to settle matters as soon as possible and Courts encourage settlement of matters as means to attempt to relieve pressure. This pressure has caused cracks within the justice system which has therefore allowed quite a few cases to go unnoticed or continuously be postponed without the victims having ever achieved some form of comfort or compensation for the trauma experienced. The solution to this ongoing issue is meditation.


Mediation is a voluntary process whereby a third party (the mediator) is appointed to assist both parties in a legal dispute. The job of the mediator is to facilitate the discussion between both parties, identify the issue each party is facing and searching for a solution to resolve the dispute without the matter being escalated to a court setting.


  1. Private;
  2. Court-annexed


In most disputes mediation is a possibility. Each party must firstly agree to attempt mediation before the process begins. The following are examples of mediation:

  • Contractual claims;
  • Motor vehicle claims;
  • Damage claims;
  • Family disputes;
  • Neighbourhood disputes;

There are no court fees placed on mediation, however it is important to take note that the Mediator in civil matters has the option to charge a fee in accordance with their fee agreement. This fee must be paid prior to the commencement of the mediation, and each party is responsible to cover this fee. Once the fee has been paid the mediation may commence.

During the mediation itself, the mediator will listen to both parties’ issues pertaining to the dispute in question whilst remaining objective and guide each party to a solution that is satisfactory.


This form of mediation follows the above-mentioned process, however in this form of mediation the court has the option to force both parties into mediation. If the parties are still unsatisfied with the outcome of mediation the criminal litigation continues.

It is important to note that at any point through the litigation process, each party has the option to request for mediation, the only way mediation will be achieved in this scenario is if both parties agree upon it.


In civil litigation in the High Court, many parties make use of Rule 41A. This is where parties are forced to consider the option of mediation in the pre-litigation phase of a dispute. Rule 41A, not only requires a notice but makes it peremptory that a party must consider the issue earnestly prior to instituting litigation and prior exercising its election as to whether to mediate or not.

This is clear from the requirement that a party must, from the onset, elect whether or not the mediate and should a party elect not to mediate, such party must state its reasons for its objection to referring the matter to mediation.

Rule 41A should be the number one method used by litigants who want to achieve their goal in the fastest way, with the least amount of damage to their finances.

This rule is yet to be brought into the Magistrates’ Courts Rules.


The justice system is overwhelmed by cases that have a higher success of mediation than litigation. Members of the public are unaware that mediation will provide a faster result whilst also alleviating the major financial burden and/orstrain placed on them if they are to rather litigate.

Mediation, whether in the Criminal or Civil setting, should be viewed as a golden opportunity by every person to achieve their goals or desired outcomes.

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At BDK Attorneys, we believe that, although we will never back down on a good fight, litigation is so much more than that. We stand for values where our clients are treated fairly and with compassion. Afterall, it is our job to navigate you through the stormy waters of your legal issues.