Commercial Mediation Agreements and Enforcement in South Africa

Abstract

The article analyses the nature of mediation clauses and agreements to mediate and their enforcement in the context of commercial mediation in South Africa. Recent jurisprudence from England suggests that courts still fail to understand how such agreements operate and there are instances when they are not as certain as parties and their advisors would like. The article analyses issues such as the survival of a mediation clause on the termination of the agreement in which it is contained, the distinction between agreements to mediate and agreements to agree or negotiate, the importance of the certainty of the procedure for the mediation, the relationship between certainty and good faith and the requirement of completeness. The article proceeds to discuss the critical importance that such clauses are presented as conditions precedent to litigation and do not attempt to oust the jurisdiction of the courts under article 34 of the South African Constitution. Remedies for breaching mediation clauses are discussed and recommendations offered as to how parties can enhance contractual certainty. The piece concludes with a legal and regulatory analysis that points to an emerging trend internationally and in South Africa towards obligating lawyers to advise disputing clients on the mediation option.