The recent directive that civil matters in the Gauteng high courts must first undergo compulsory mediation is likely to increase costs for indigents in their bid to resolve their claims.
Since the directive was issued in April, only three matters from 1,000 mediation notices served to the Road Accident Fund (RAF) by two law firms representing the Personal Injury Plaintiff Lawyers Association (Pipla) in the Pretoria high court have gone to mediation.
Pipla represents about 400 personal injury lawyers.
“The numbers tell a dismal story. Only 35 have been answered, and just three matters have gone to mediation. To date nothing has been settled,” said Pipla chairperson advocate Justin Erasmus.
Pipla is unhappy with this directive as it means a number of plaintiffs against the RAF, who have waited for years to secure trial dates, risk losing the dates because of the requirement for mediation.
In May, Pipla launched an application on behalf of its members in the Pretoria High Court regarding the lack of functionality of the current mediation directive. They asked the court to declare some sections of the directive introducing mandatory mediation and the protocol constitutionally invalid.
The RAF and the minister of justice are listed as respondents in the application.
When proposing the directive earlier this year, deputy chief justice Dunstan Mlambo, who was Gauteng judge president, said most cases now on the civil trial roll were capable of resolution through mediation, settlement and other alternative dispute resolution means.
However, Erasmus said the directive and protocol provided for the parties to be liable for the cost of mediation. He said no provision was made for indigent litigant.
“The poor and vulnerable (in Gauteng), who are unable to afford mediation, will be severely prejudiced and experience a violation of their right to equal protection under the law and access to court. Similarly the litigant who is unsuccessful during mediation will in effect have to pay legal fees 'again' to have the matter adjudicated in court.”
He said a mediation industry is fast developing where vast amounts of money are being spent on mediation and mediation training. He said mediators are likely to derive significant financial benefits with very little, if any, benefit to the litigating public.
Pipla initially approached the Constitutional Court in May to challenge the legality and constitutionality of the directive. The application for direct access to that court was refused.
The RAF simply does not have the capacity to mediate in volume
— Justin Erasmus, Personal Injury Plaintiff Lawyers Association chair
Erasmus said based on the last four months, it seemed reasonable to assume Pipla's challenge was well founded.
He said in his founding affidavit in the high court that the directive and protocol were not practically workable as the volume of mediation between plaintiffs and the RAF will be unmanageable.
The Pipla application is likely to be heard late this year or next year.
Pipla filed a supplementary founding affidavit last week, where Erasmus said the RAF lacked the capacity to reply to notices to mediate, let alone attend to actual mediations.
“The RAF simply does not have the capacity to mediate in volume,” Erasmus said.
Pipla said historically, Gauteng High Court trial rolls carried about 300 RAF matters per week. It said mediation, by its very nature, was a protracted process taking at least a full day.
“To keep up to date with volumes and prevent bottlenecks in the future, 300 mediations per week must take place in Gauteng.”
Erasmus said this was impossible because there were currently only 35 state attorneys in Gauteng, all with other fairly substantial responsibilities. “Therefore even if all state attorneys did no other work and every attorney did one mediation each day, the backlog will get bigger and bigger.”
Erasmus said to deal with all cases on the roll required at least 60 state attorneys dedicated solely to the task. “These state attorneys would also require the support of claims handlers and other staff to run effective mediations.”
Erasmus said the negative aspects of mediation in the three cases so far outweighed the benefits.
In the first mediation case, Erasmus said he represented a plaintiff during mediation on July 14.
“We were told by the state attorney that this was the RAF's first mediation in terms of the directive, and indeed, the RAF had 17 observers present, including senior persons such as the head of legal department,” Erasmus said.
On July 11, an offer had been received from the RAF which was acceptable to the plaintiff in terms of the issues of liability and general damages, but not for loss of earnings.
“The mediation then proceeded but, despite taking the greater part of the day, it was impossible to settle loss of earnings. I emphasise that both parties made a bona fide attempt to settle.”
Erasmus said the matter will now go to trial with little or no benefit to judicial resources.
“The bulk of the evidence, experts in particular, will still need to be presented, possibly cross-examined and argued on. Little, if any, time and costs were saved by the mediation process.”
Significant costs were incurred as the mediator required a written summary of the plaintiff's case, which took about eight hours to prepare. Both sides were represented, which entailed considerable expenses and the mediator also required payment.
In the second case, Erasmus observed another mediation on July 23 where similar time and expenses were incurred without any aspect being settled.
On July 24, Erasmus represented a plaintiff in mediation in the case which concerned a minor child who was 10 at the time of the accident, who was standing on the side of the road when she was struck by a motor vehicle.
“The issue of liability was never going to be contentious on the facts of the case and the RAF conceded liability at the commencement of the mediation (as it often does on the day of the hearing).
“Once again significant time, money and resources were expended and with little benefit to the parties or the judiciary.”
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