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COURTS (MANDATORY MEDIATION) RULES, 2004
GOVERNMENT NOTICE NO. 9
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION) RULES, 2004
IN EXERCISE of the
powers conferred by section 67 of the Courts Act as read with section 13(l) of
the Constitution, I, LEONARD EZRA UNYOLO, SC, Chief Justice, hereby make
the following Rules
Citation 1. These
Rules may be cited as the Courts (Mandatory Mediation) Rules, 2004.
Application 2. Subject
to rule 3 -
(a) these Rules shall apply to civil actions pending before the High Court and subordinate courts; and
(b) all civil actions commenced before the High Court and subordinate courts.
Exemption 3. These Rules shall not apply to
proceedings -
from mediation
(a) arising out of or relating to or concerning the interpretation or application of the provisions of the Constitution;
(b)
concerning
the liberty of an individual;
Cap. 3:02 (c) commenced under the Subordinate Courts (Small Claims Procedure) Rules;
sub.leg.p.124
(d) for -
(i)
judicial
review matters;
(ii)
an
injunction;
(iii)
summary
possession of land;
(iv)
an
expedited originating motion;
(v)
any
such matters where by law or practice, the trial is expedited;
(e) where the court makes an order on an application by a party requesting the court to exempt the action from these Rules; or
(f) where the court, in its discretion, so
orders.
Mandatory 4. All proceedings to which these Rules
apply shall first go through mediation in accordance with these Rules.
mediation
Purpose and 5. (1) In conducting any mediation session under these Rules -
nature of
mediation
(a) the parties shall strive to reduce cost and delay in litigation, and facilitate the early and fair resolution of disputes; and
(b) the mediator shall facilitate communication between or among the parties to the dispute in order to assist them in reaching a mutually acceptable resolution.
(2) Without derogation from the generality
of sub-rule (1), the mediator -
(a) shall in an independent and impartial manner do everything necessary to help the parties to resolve their dispute;
(b) may, where necessary, conduct joint or separate meetings with the parties and may make recommendations for a settlement;
(c) may, where services of an expert may be
obtained at no cost or without expense, or where such services may be obtained at a cost, and if parties agree to pay such costs or
expenses, obtain expert advice on a technical aspect of the dispute, which
advice shall be given in an independent and impartial manner;
(d) shall be guided by principles of objectivity, fairness and natural justice, and shall give consideration to, among other things-
(i) the rights and
obligations of the parties;
(ii) the usages of the
trade concerned; and
(iii) the circumstances surrounding the disputes, including any previous business practices between the parties;
(e) may, at any stage of the mediation proceedings and in a manner that the mediator considers appropriate, take into account the wishes of the parties, including any request by either of the parties that the mediator should hear oral statements for a speedy settlement of the dispute; and
(f) may, at any stage of the mediation proceedings, make proposals for the settlement of the dispute.
(3) A request for the services of an expert
under this rule may be made by the mediator or by any party with the consent of
the other party or parties.
Mediation 6. (1) The
Assistant Registrar (ADR) shall act as mediation coordinator.
coordination
(2) Where under these Rules the Assistant
Registrar (ADR) is required to take any action or perform any duty, in respect
of action begun in the subordinate court, the taking of such action or
performance of such duty shall be done by officers designated by the Chief
Justice by notice published in the Gazette.
Mediation 7. (1) Within fourteen days after the service
of defence, in respect of actions begun in the High
Court, or within eight days
session
of the filing of an affidavit of defence, in case of actions begun in the subordinate court, the plaintiff shall file with the Assistant Registrar (ADR) a notice in FORM A in Schedule I, stating the name of the mediator and the date of mediation session.
(2) A mediation session shall take place within ninety days after the service of defence, or an affidavit of defence, unless the court orders otherwise.
(3) In considering whether to extend or reduce the period prescribed under sub-rule (2), the court shall take into account all the circumstances, including the number of parties, the state of the pleadings, the complexity of the issues in the action or the stage of the mediation.
(4) The extension of the period under this rule shall not exceed thirty days.
(5) The mediation shall be deemed to have been terminated at the expiry of ninety days prescribed under sub-rule (2) and, where the period of mediation has been extended, at the expiry of the extension.
Selection of 8. (1) The parties shall jointly choose a
mediator from a list of mediators to be maintained
pursuant to rule 9 or any person
mediator
who is not named on the list.
(2) In choosing a mediator under sub-rule (1) the parties shall be assisted by their legal practitioners, or the court where the parties are not so represented.
List of 9. (1) The Assistant Registrar (ADR) shall,
with the approval of the Chief Justice, compile and maintain a list of
mediators
mediators,
experts and and a list of experts.
conduct of
mediation
(2) Mediation under these Rules shall be conducted by a person chosen by the agreement of the parties from the list of mediators compiled and maintained pursuant to sub-rule (1) or, if the parties consent, a person who is not named on the list.
(3) A mediator shall be a fit and proper neutral third party who has had training in mediation.
(4) Every person who conducts a mediation
under sub-rule (2), whether named on the list or not, shall comply with the
requirement as to the making and giving of a report on the mediation under rule
18.
(5) The Assistant Registrar (ADR), with the
prior approval of the Chief Justice, may after according the opportunity to be heard, remove from the list of mediators compiled
and maintained under this rule, the name of any mediator who -
(a) does not comply with rule 18;
(b) displays bias or prejudice;
(c) is incompetent;
(d) negligently performs his or her duties; or
(e) is guilty of misbehaviour.
(6) The Assistant Registrar (ADR), with the prior approval of the Chief Justice, may remove from the list of mediators and from the list of experts compiled and maintained under this rule, the name of any mediator or expert who does not comply with these Rules.
(7) The list of mediators and list of
experts, and every change thereto, shall be published in the Gazette.
(8) Where a mediator has been disqualified before the conclusion of a mediation, the matter shall be transferred to another mediator agreed upon by the parties who shall proceed with the matter as he or she deems fit.
Statement 10. (1) At least
fourteen days before the mediation session, every party
shall prepare a statement in FORM B in
Schedule I
of issues
and provide a copy to every other party to the mediation and to the mediator.
(2) The statement referred to in sub-rule (1) shall identify the factual and legal issues in dispute and briefly set out the position and interest of the party making the statement.
(3) Every party who makes a statement under
this rule shall attach to it any material which the party considers of central
importance in the matter.
(4) The plaintiff shall include a copy of the
pleadings with the copy of the statement which is provided to the mediator.
(5) If it is not practical to conduct a mediation because a party fails to comply with sub-rule (1), the mediator shall cancel the mediation and immediately file with the Assistant Registrar (ADR) a certificate of non-compliance in FORM C in Schedule I.
Attendance 11. (1) The parties and their legal
practitioners, if the parties are represented, shall attend the mediation
session.
(2) If a third party may be liable to satisfy
all or part of a judgment in the action or to indemnify or reimburse a party
for money paid in satisfaction of all or part of a judgment in the action, the
third party and a legal practitioner of the third party may also attend the
mediation session, unless the court orders otherwise.
Authority to 12. (1) A party to a
mediation session shall have authority to settle any matter during the
mediation session.
settle
(2) A party who requires the approval of another person before agreeing to a settlement shall, before the mediation session, arrange to have ready means of communication to that other person throughout the session, whether it takes place during or after regular business hours.
Failure to attend 13. If it is not practical to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the mediator shall cancel the session and immediately file with the Assistant Registrar (ADR) a certificate of non-compliance in FORM C in Schedule I.
Non-compliance 14. (1) Where a certificate of non-compliance is
filed, the Assistant Registrar (ADR) shall refer the matter to the Magistrate,
Chairperson of the Industrial Relations Court, Registrar or the Judge, as the case
may be, concerned with case management.
(2) Where a matter is referred under sub-rule (1), the Magistrate, Chairperson of the Industrial Relations Court, the Registrar or the Judge, as the case may be, concerned with case management may -
(a) establish a timetable for the action;
(b) strike out any document filed by a
party;
(c) dismiss the action, if the non-complying party is a plaintiff, or strike out the statement of defence, if the non-complying party is a defendant;
(d) order a party to pay costs; or
(e) make
any other order that is deemed just.
Confidentiality 15. (1) All communications at a mediation
session and the notes and records of the mediator shall be deemed to be
of
mediation
confidential.
(2) Without derogation from the generality
of subrule (1) -
(a) a record, report, settlement agreement, except where its disclosure is necessary for the purpose of implementation and enforcement, and any other documents required in the course of mediation shall be confidential;
(b) a mediator shall not -
(i) disclose information given in the
course of the mediation to a person who is not
a party to the mediation without the consent of the parties; or
(ii) be a witness in any court proceedings relating to the same matter;
(c) a party to a mediation shall not rely on
-
(i) the record of the
mediation;
(ii) statement made at the mediation session,
or
(iii) any information obtained during the mediation, as evidence in court proceedings or any other subsequent settlement initiative, except in relation to proceedings brought -
(A) by either party to vitiate the settlement agreement on the grounds of fraud; or
(B) against a mediator relating to his or her conduct of the mediation in terms of rule 9 (5).
Settlement 16. (1) When it appears to the mediator that
there exist elements of a settlement which may be
acceptable to the parties, the
agreement
mediator
shall formulate the terms of a possible settlement and submit them to the
parties for their consideration, and after receiving the observations of the
parties, the mediator may reformulate the terms of a possible settlement in the
light of those observations and resubmit them to the parties as it appears to
him or her expedient.
(2) If the parties reach agreement on a
settlement of the dispute -
(a) the mediator shall immediately
thereafter draw up a settlement agreement in conjunction with the parties; and
(b) the parties shall sign the settlement agreement in the presence of each other, and the mediator shall also sign the settlement agreement in the presence of the parties.
(3) The mediator shall furnish a copy of the signed settlement agreement to each of the parties.
(4) The signed settlement agreement shall
be
(a) filed in court by the mediator within two days after the signature;
(b)
recorded
by the court as a judgment of the court,
and may be enforced by the court as its own judgment.
(5) When the parties sign the settlement
agreement, the settlement agreement shall be binding on the parties and persons
claiming under them.
(6) Where upon the conclusion of mediation
no settlement agreement is reached, the court shall continue with the
proceedings in the action from the point where and at which the action was
referred for mediation.
End of 17. (1) A mediation is
ended when -
mediation
(a) the parties execute a settlement
agreement;
(b) the mediator cancels a mediation session
under rule 10 (5) and rule 13 for non-compliance on the part of any party;
(c) the mediator, after consultation with
the parties, makes a declaration to the effect that further mediation is not
worthwhile;
(d) it is terminated because parties have
failed to pay deposits under rule 21 unless the
court orders otherwise;
(e) the mediation is terminated in terms of
rule 7 (5);
(f) the parties jointly address a declaration to the mediator that the mediation is terminated; or
(g) a party makes a declaration to the mediator and the other party to the effect that the mediation is terminated.
(2) A
declaration under sub-rule (1) may be in writing or orally, but where a
declaration is made orally, the mediator shall record it in writing.
Mediation
report 18. The
mediator shall, within fourteen days after the mediation is concluded, submit
to the Assistant Registrar (ADR) and the parties a written report on the
mediation.
Exclusion of 19. A mediator is not liable
for any act or omission done or performed
liability
in
good faith in respect of a mediation under these Rules.
Mediation fees 20. (1) Unless the parties agree otherwise, the
expenses of the mediation, including the fees payable to the mediator;
and expenses
reasonable expenses
for the experts called; and any other reasonable
expenses incurred in connection with the mediation session and the settlement
agreement, shall be
shared equally by the parties.
(2) The mediators fees for the mediation
session under these Rules shall not exceed the amount prescribed in Schedule
II; but so however that where the dispute is of a nature that is
unquantifiable, the fees shall be determined by the Assistant Registrar (ADR).
Deposits 21. (1) The mediator may direct each party to
deposit an equal amount as an advance for the expenses referred to in rule 20,
which the mediator expects will be incurred.
(2) The mediator may, during the course of
the mediation, direct supplementary deposits in an equal amount from each
party.
(3) If a
deposit required pursuant to sub-rule (1) or (2)
is not paid in full by any of the parties within fifteen days of the direction,
the mediator may suspend the mediation session or may make a written
declaration of termination of the mediation to the parties, effective on the
date of the declaration.
(4) Upon termination of the mediation, the
mediator shall render an account to the parties of the deposits received, and
shall return any unexpended balance to the parties.
Appeals 22. No
appeal shall lie against a settlement agreement filed in court under rule 16 (4)
(a).
Transitional 23. (1) Within one
year from the date of promulgation of these Rules, the Assistant Registrar
(ADR) shall, in respect of cases
provision
which have gone past
the stage for reference to mediation prescribed under rule 7, communicate with
the parties requesting them to indicate whether they would nonetheless opt for
mediation under these Rules.
(2) Where parties opt for mediation, the
matter shall be referred to mediation under these Rules.
SCHEDULE I (r. 7 (1))
FORM
A (i)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION)
RULES, 2004
IN THE HIGH COURT OF MALAWI
....................................... REGISTRY
CIVIL CAUSE NO. ................... OF ..................
Parties
NOTICE OF NAME OF MEDIATOR AND DATE OF SESSION
To: The Assistant Registrar (ADR)
1. IT IS HEREBY certified that the parties having consulted have chosen .. . (state name of mediator) as the mediator for the mediation session.
2. (a) The mediator is named in the list of mediators, or
(b) The mediator is not named in a list of mediators, but has been chosen by the parties under rule 8 (1).
3. The mediation session will take place on .. (state date).
Dated this .............................day of ............................., 20..
Plaintiff or Plaintiffs Legal Practitioner
(Name, address, telephone number, fax number or E-mail address of plaintiffs Legal Practitioner of the plaintiff)
.. .
.. .. ..
..
.. .. .
( r. 7
(1))
FORM A (ii)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION)
RULES, 2004
IN THE ................. ...... MAGISTRATES COURT
SITTING AT ............. .... ............................... ......
CIVIL CAUSE NO. ................... OF .......... ...
Parties
NOTICE OF NAME OF MEDIATOR AND DATE OF SESSION
To: The Assistant Registrar (ADR)
1. IT IS HEREBY certified that the parties having consulted have chosen (state name of mediator) as the mediator for the mediation session.
2. (a) The mediator is named in the list of mediators, or
(b)
The
mediator is not named in a list of mediators, but has been chosen by the
parties under rule 8 (1).
3. The mediation session will take place on . (state date).
Dated this .......................day of .......... ..............., 20..
.
Plaintiff or Plaintiffs Legal Practitioner
(Name, address, telephone number, fax number and E-mail address of plaintiffs Legal Practitioner or of the plaintiff)
.
.
.. .
.. .
(r. 10 (1))
FORM B (i)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION) RULES, 2004
IN THE HIGH COURT OF MALAWI
................................ .. REGISTRY
CIVIL CAUSE NO. ................... OF ..................
Parties
STATEMENT OF ISSUES
(To be provided to mediator and parties at least 14 days before mediation session)
1. Factual and legal issues in dispute
The Plaintiff (or defendant) states that the following factual and legal issues are in dispute and remain to be resolved.
(Issues should be stated briefly and numbered consecutively)
2. Partys position and interest (What the party hopes to achieve)
(Brief summary)
3. Attached materials
Attached to this form are the following materials that the plaintiff (or defendant) considers of central importance in the matter: (list).
Dated this .......................... day of ......................., 20..
.. .
Partys signature or Partys Legal Practitioners signature
(Name, address, telephone number, fax number and E-mail address of
the party or Legal Practitioner of the party filing statement of issues).
..
.
Note A: When the
plaintiff provides a copy of this form to the mediator, a copy of the pleadings
shall also be included.
Note B: All
communications at a mediation session and the mediators notes and records
shall be deemed to be confidential.
Note C: Consequences of non-compliance:
Failure to submit a statement of issues may lead to a cancellation of the
mediation.
(r. 10 (1))
FORM B (ii)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION) RULES, 2004
IN THE ........................ MAGISTRATES COURT
SITTING AT ........................................................
CIVIL CAUSE NO. ................... OF ..................
Parties
STATEMENT OF ISSUES
(To be provided to mediator and parties at least 14 days before mediation session)
1. Factual and legal issues in dispute
The plaintiff (or defendant) states that the following factual and legal issues are in dispute and remain to be resolved.
(Issues should be stated briefly and numbered consecutively)
2. Partys position and interest (What the party hopes to achieve)
(Brief summary)
3. Attached materials
Attached to this form are the following materials that the plaintiff (or defendant) considers of central importance in the matter: (list).
Dated this .......................... day of ....................., 20..
.. .
Partys signature or Partys Legal Practitioners signature
(Name, address, telephone number, fax number and E-mail address of the party or Legal Practitioner of the party filing statement of issues).
..
.
.. ..
..
Note A: When the plaintiff provides a copy of this form to the mediator, a copy of the pleadings shall also be included.
Note B: All
communications at a mediation session and the mediators notes and records
shall be deemed to be confidential.
Note C: Consequences of
non-compliance: Failure to submit a statement of issues may lead to a
cancellation of the mediation.
(rr. 13, 17, 20, 21)
FORM C(i)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION)
RULES, 2004
IN THE HIGH COURT OF MALAWI
.......................................... REGISTRY
CIVIL CAUSE NO. ................... OF ..................
Parties
CERTIFICATE OF NON-COMPLIANCE
To: The Assistant Registrar (ADR)
I, .. (name), mediator, certify that this certificate of non-compliance is filed because -
(a) . (identify party or parties) failed to provide a copy of a statement of issues to the mediator and the other parties (or to the mediator or to party or parties).
(b) .. (identify plaintiff) failed to provide a copy of the pleadings to the mediator.
(c) .. (identify party or parties) failed to attend without good cause a scheduled mediation session.
(d)
(identify party or parties) failed to pay fees.
Dated this .................... day of .................... , 20..
.........................................................
Name of Mediator
(Name,
address, telephone number, fax number and E-mail address, if any, of mediator)
.
.
..
..
..
(rr. 13,
17, 20, 21)
FORM C(ii)
COURTS ACT
(Cap. 3:02)
COURTS (MANDATORY MEDIATION) RULES, 2004
IN THE ........................ MAGISTRATES COURT
SITTING AT ........................................................
CIVIL CAUSE NO. ................... OF ..................
Parties
CERTIFICATE OF NON-COMPLIANCE
To: The Assistant Registrar (ADR)
I, (name), Mediator, certify that this certificate of non-compliance is filed because -
(a) .. (identify party or parties) failed to provide a copy of a statement of issues to the mediator and the other parties (or to the mediator or to party or parties).
(b)
(identify plaintiff)
failed to provide a copy of the pleadings to the mediator.
(c) .. (identify party or parties) failed to attend without good cause a scheduled mediation session.
(d)
..
(identify party or parties) failed to pay fees.
Dated this .................... day of ...................... , 20
.........................................................
Name of Mediator
(Name,
address, telephone number, fax number and E-mail address, if any, of mediator)
.
.
..
..
..
SCHEDULE II (r.20 (2))
MEDIATORS FEES FOR THE MANDATORY
MEDIATION SESSION
Value of subject matter Fees
claimable
Above K5,000 not exceeding K50,000 5 percent,
subject to a minimum of K1,000
Exceeding K50,000 but not
exceeding K100,000 5
percent, subject to minimum of K2,500
Exceeding K100,000 but not
exceeding K500,000 3
percent, subject to a minimum of K10,000
Exceeding K500,000 but not
exceeding K1,000,000 2
percent, subject to a minimum of K15,000
Exceeding K1,000,000 and above 1
percent, subject to a minimum of K20,000 and a maximum of K100,000
Made this 26 day of August, 2004.
L. E. UNYOLO, SC
Chief Justice
(FILE NO. HC/CJ/SUB.D.3:02)