THE NEW HIGH COURT RULE

MEDIATION RULEBy Theresia Shindingeni & Jacques Strauss

BRIEF OVERVIEW & KEY INSIGHTS

Mediation -> Process court requires parties to try and settle disputes pending before trial. -> Form of ADR (Alternative Dispute Resolution) as a court accredited mediation. -> An accessory of courts adjudication function

BRIEF OVERVIEW & KEY INSIGHTS CONT..

Court mediation -> Introduced 16th April 2014 -> By High Court. -> Coming into operation of high court rules. Period May – June 2014 -> 103 court accredited mediators trained.

Why & How CMT Applies in Our Judicial System

An important element of a properly functioning court is the existence of diversionary strategies that will ease the burden on the adjudication function of the court.

ADR is such a strategy and was born from the indisputable reality that the court system will become dysfunctional and will ultimately collapse if the undoubted pressure on courts is not eased.

Why & How CMT Applies in Our Judicial System Contd…

Through CMT parties will reach an agreement through negotiations .

Parties will no longer engage purely in adversarial manner .

Potential benefits and possible challenges of bringing such an

approach to Namibia?

With initiatives such as ADR mechanisms, case flow management systems may offer the following

additional advantages:

It minimizes delay

Reduces the cost of litigation.

Improvement in the justice delivery system.

Renewed public confidence in the judicial system

Confidentiality

Past presents future solution

Parties have control over outcome.

Progress Namibia is new to this mediation process

by the High Court. Useful in future -> Creates opportunity to

litigants to reduce litigation costs in a controlled environment.

-> Frees up judicial time in our Namibian judicial system to hear maters that have friendly resolutions.

Challenges of bringing Mediation to Namibian Courts

There is a need to establish a legal precedent in court e.g. A party wants an interpretation of the constitution.

One or more parties may not be attempting mediation in good faith.

One or more party may want to draw public attention to the dispute.

In order for mediation to be swiftly adopted, a wide education

program is necessary.

This Extend To:

Capacity needs to

be developed

The legal professionals

The gener

al public

The general public

Should understand that a new process is in place, that it holds

costs savings benefits, and that it requires of them to engage

constructively towards settlement.

The legal professionals

The legal profession needs to understand how mediation works, what their role in the process is

when they represent parties, and for those who are interested, how to

qualify as mediators.

Capacity needs to be developed

One or more mediation service providers in Namibia that can assist

with the administration of the mediation process (it is unrealistic to expect the Registrar’s Office to also engage in this administration)

There must be contractual responsibility to court to deliver

mediation service.

Implementation Contd… Mediator must take cultural differences

between parties into consideration Mediation can take place anywhere in the

world as its not based on legal premises but on communication. Example, Arabic culture

Parts of the world High Court Mediation is implemented?

TUNISIA Won the Noble Peace Prize for role as

mediator and force for democracy Paved a way for a peaceful dialogue

amongst citizens, political parties and authorities.

Assured that a fair implementation of Tunisian mediation was implemented,

referring to the Noble Peace Prize official source

Belize as an Example

What happens during a Mediation Session?

1.Preliminary Meeting• Betwe

en lawyers & Mediators

2.Joint Meeting• Mediators

with all vested parties and lawyers

3.Caucus Meeting• Mediator

and each party

4.Conclusion of Mediation

5.Report of Mediator• If case is not

settled, court assigns trial date

What happens when no agreement is reached?

Mater referred to managing judge who instructs parties to follow procedure in given time frame.

Trial date set by managing judge. Trial dates assigned must be adhered to

( court practices strict non-adjournment policy) .

Where Are We Now?? During the period 16 January 2015 – 4 March 2015

seventy three (73) of the one hundred and three (103) court-accredited mediators attended to 208 (two hundred and eight) court-accredited mediations in the High Court of Namibia. The following are statistics on the 2015 court-accredited mediations in the High Court of Namibia:

* Eight (8) [4%] of the 208 mediations scheduled could not be concluded during the scheduled sessions and were postponed for continuation;

* One (1) [0.5%] mediation was re-scheduled due to the mediator knowing one of the parties;

* 28 [13.5%] of the 208 mediations were settled by the parties prior to the mediation proceedings;

Where Are We Now Cntd…??

* 77 [37%] of the 208 mediations resulted in settlements and was therefore successful

* In 45 [21.6%] of the mediations the parties could not reach an agreement during mediation, and failed reports have been filed by the mediators;

* 7 [3.4%] mediations failed due to obstructive behavior by one or more of the role players, i.e. representative legal practitioner, plaintiff or defendant

* 42 [20%] reports are still outstanding at date of publication of this report.

Mediation Schedules(2015)

Success VS Fail

THE END!!!