CONTACT A COBRA MEDIATOR

HOW DOES THE MEDIATION SERVICE WORK?

  • Any person/entity who has a dispute/disagreement with another person/entity may refer that dispute (or a series of different disputes, if they are related to the same set of facts) to mediation through COBRA.
  • Mediation cannot take place if the matter has already been referred to another dispute resolution forum such as the Rental Housing Tribunal, Competition Commission, Labour Court, Community Schemes Ombud, or any other court, unless all of the parties to such dispute agree. The judge/commissioner in such proceedings may also need to agree, and the parties are under the obligation to obtain this consent, if required by law. Without such consent having been obtained, the mediation will not proceed.

REFERRAL OF DISPUTE BY COMPLAINANT

  • The person referring the complaint will be referred to as the “Complainant”.
  • A dispute or complaint is lodged by the Complainant by submitting an online form providing relevant details (“Referral Form”). The online form can be accessed here: _________________.
  • Once a Referral Form has been submitted, the details of the dispute/complaint will be forwarded to the person/s against whom it is made (the “Respondent/s”).
  • COBRA can assist a Complainant in preparing and in explaining to them how to file a notice accepting mediation in terms of Uniform Rule 41A if they need assistance with this. Uniform Rule 41 can be accessed here: ___________________

ACCEPTANCE OF REFERRAL

  • COBRA will communicate the receipt of the referral of the dispute by the Complainant to the Respondent/s.
  • A referral of a dispute does not oblige the Respondent/s to agree to mediation. They are free to chose not to agree to mediation.
  • COBRA will not issue a certificate to indicate that a party has refused to agree to mediation, because this defeats the purpose of the Uniform Rule 41A notices referred to in Rule 41A(2)(a) and (b) read with subrules 6 and 9(b).
  • The Respondent/s will have 10 court days to accept the referral to mediation (if the mediation is not a Uniform Rule 41 mediation), and will have a different time period to accept (which time period will vary, depending on the type of legal proceedings and nature of defendant/respondent
    in such proceedings) if the mediation is a Uniform Rule 41 mediation. If it is the latter the number of days within which the Respondent/s will have to decide whether to accept the referral to mediation will be communicated to both parties.
  • COBRA can assist a Complainant in preparing and in explaining to them how to file a notice accepting mediation in terms of Rule 41A if they need assistance with this.
  • Once the Respondent/s have agreed to mediation, the Complainant and the Respondent/s will have a maximum of 14 court days to both sign the Mediation Agreement and Joint Minutes to Mediate (the latter of which will only be applicable if the mediation is conducted in terms of Uniform Rule 41A). A blank copy of the Mediation Agreement can be accessed here: _____________________, and a blank copy of the Joint Minutes to Mediate can be accessed here: _____________________ so that parties considering whether to accept a referral to mediation with COBRA can accept that referral.
  • The Mediation Agreement will govern the terms of the mediation if the Respondent/s accept.
  • If the mediation is done in terms of Uniform Rule 41A referral, and the Respondent/s accept the referral to mediation, COBRA will prepare the Joint Minute to Mediate for the Complainant/Respondent/s but they must arrange for the Joint Minute to Mediate to be filed at court.

APPOINTMENT OF MEDIATOR

  • Once the Respondent/s have signed the Mediation Agreement (and if applicable, Joint Minutes Agreeing to Mediate) a mediator will be appointed by COBRA within 2 court days. This is subject availability of mediators.
  • The Mediator will be an attorney in practice with experience in dispute resolution.
  • The Mediator has signed an agreement with COBRA in terms of which he/she undertakes to keep all information/documentation relating to these mediation proceedings confidential, with the exception of the details that are disclosed on the mediation certificate referred to more fully below.
  • The parties chose a mediator with the level of experience relevant to the complexity of the dispute. The more experienced the mediator, the more the mediator’s fees are.

PAYMENT OF THE MEDIATION FEES

  • The Mediator will immediately call for payment of the agreed fee from the Complainant and Respondent/s, and must receive payment within 5 court days from both parties.
  • If any of the mediating parties don’t pay the mediation fees on time, the mediation will not take place and the Mediator may issue a certificate indicating that the mediation could not take place as a result of the non-payment of a party (and the mediator may specify in the certificate which party did not pay on time).
  • The parties are responsible for payment of the mediator’s fees on an equal basis (for example, if there are two parties, each pay 50%).

GETTING BOTH SIDES OF THE STORY

  • Once the Respondent/s have signed the Joint Minute Agreeing to Mediate, they will both have 10 court days to submit a more comprehensive explanation of the dispute/complaint, including any supporting documents. The 10 day period runs at the same time for all parties.
  • All submissions will be circulated to all other parties.
  • After this, none of the parties have any rights to submit any additional information/documentation or to reply to the other parties, except that the Mediator may allow evidence not submitted in writing to be produced at the mediation hearing, at his/her sole discretion, where exceptional circumstances warrant this.

MEDIATION MEETING

  • The Mediator will arrange for the mediation meeting to be held over Zoom or Teams or another type of electronic meeting platform available for free to the parties.
  • If one or more of the parties are unable to attend an electronic meeting, the Mediator will arrange for a physical one instead. However, this is only avialable at present to mediations that can be conducted within the Johannesburg area.
  • Although all efforts will be made to ensure that the date and time of the meeting does not inconvenience anyone, the parties may need to re-arrange their diaries to attend the mediation meeting.
  • If one of the parties is being obstructive and is avoiding attending the mediation meeting, the Mediator may issue a certificate of outcome of mediation indicating this.
  • The aim is to conclude the mediation within 30 days of signing the Joint Minute to Mediate. If this is a Uniform Rule 41A mediation and it is not concluded within this time frame, an application may need to be brought to court for an extension of time within which to conclude the mediation.
  • If the Mediator’s unavailability is the cause of the delay, COBRA will bring the application (if necessary).
  • If the unavailability of the parties is the cause of the delay, that party will be responsible to bring the application, alternatively for the costs of same if the other needs to bring that application. COBRA can assist with the bringing of the application, if necessary.

SETTLEMENT AGREEMENT

  • The aim of mediation is to bring about a settlement that settles all issues between the mediating parties.
  • Where this is possible, the Mediator will draft a mediation agreement that includes the terms agreed to by the mediating parties, and which may include other standard commercial terms which are necessary or reasonable to support the agreed terms, and will transmit it to the mediating parties for signature.
  • If any of the mediating parties unreasonably refuse to sign the settlement agreement, the Mediator may issue a certificate of outcome of mediation that indicates this.
  • If court proceedings in the High Court have already commenced, once the mediating parties have signed the Settlement Agreement, it may be made an order of court in terms of Uniform Rule 41 and the Plaintiff’s/Applicant’s attorney is under a duty to immediately bring this to the attention of the Registrar concerned.
  • If the Settlement Agreement is signed, the Mediator will issue a certificate of outcome of mediation to indicate that settlement was achieved, and the mediation process will come to an end.
  • The mediation parties must file the mediation certificate at court within 5 court days of the conclusion of the mediation proceedings, if the mediation is one in terms of Uniform Rule 41.

PARTIAL SETTLEMENT

  • If the mediating parties are able to reach settlement on some but not all of the issues between them, a settlement agreement will be sent to the mediating parties to sign in relation to the issues that have become settled.
  • The same process as described above applies in relation to the settlement of the matter in full applies to the situation where only certain issues have become settled, except that the Mediator will issue a certificate of outcome of mediation that explains that only certain issues were settled, listing such issues.
  • The mediation parties must file the mediation certificate at court within 5 court days of the conclusion of the mediation proceedings, if the mediation is one in terms of Uniform Rule 41.

NON-SETTLEMENT

  • If none of the issues could be settled, the Mediator will issue a certificate indicating same, and the mediation process will come to an end.
  • The mediation parties must file the mediation certificate at court within 5 court days of the conclusion of the mediation proceedings, if the mediation is one in terms of Uniform Rule 41.

BREACH OF THE SETTLEMENT AGREEMENT

  • The Settlement Agreement may contain terms that require that the mediating parties perform certain obligations or make certain payments by certain dates (“Settlement Obligations”).
  • The Settlement Agreement may further contain terms that provide for consequences for non-compliance with these Settlement Obligations. Some of the standard consequences that might be included are:
    • Interest will start to run and become due and payable on amounts overdue. (NB NCA applicability here?)
    • Any relaxations or indulgences or waivers of rights given by the creditor (to whom the Settlement Obligations are owed) will fall away and all performances/amounts originally claimed by the creditor will immediately become due and payable.
    • The creditor may institute or continue with legal proceedings (or proceedings instituted in another dispute resolution form) against the debtor.
    • The Settlement Agreement may be made an order of court within the parameters of Uniform Rule 41(4) when the non-performance of any of the Settlement Obligations contained therein occurs, on 5 court days notice to all parties, by any mediating party.
  • Neither COBRA nor the Mediator can advise any of the mediating parties on their rights in terms of the Settlement Agreement once it has been signed, as the role of these parties is only to facilitate settlement and in doing so they act for both parties. They cannot advise the one against the other. Any queries of such a nature will be referred to the attorneys of the parties,
    alternatively if the parties are unrepresented, COBRA can assist the parties in finding attorneys, to assist further.
  • COBRA can, however, refer the matter to its panel of attorneys, to assist with the making of the Settlement Agreement an order of court at the insistence of any of the mediating parties, at or before breach of the Settlement Obligations occur, at the normal fee of such attorneys, will be quoted in advance to the enquiring party. However, if this occurs, this is done in terms of a relationship between the enquiring party and the attorney, and not through or with COBRA.
CONTACT A COBRA MEDIATOR