Thinking of splitting up? Ask your lawyer about Rule 41 first

accreditation
0:00
play article
Subscribers can listen to this article
Rule 41 was passed by the High Court to encourage mediation
Rule 41 was passed by the High Court to encourage mediation

Rule 41 was passed by the High Court to encourage mediation and not the immediate course of litigation, which adds adds pressure onto an already strained court system. 

Mediation is a round table discussion that can take place with or without an Attorney present for both parties in order to resolve a dispute.

Also see: Unmarried parent? Know your rights

It is said to be more affordable and work a lot faster. Mediation is the best option for preserving the relationship between all parties, this is particularly favourable when it comes to Family Law matters.

So explains Rushka Lee Pedro, an Alternative Dispute Resolution (ADR) practitioner who founded a Family Law Mediation Practice, Minor Impact.  

In short, your legal representative must suggest you try mediation to settle your dispute before going to court. You do have the right to refuse mediation, and this must be formally documented before you can proceed with lodging your issue with the court.  

A subsection of Rule 41 states that before a summons can be issued, a notice of agreeing or opposing mediation needs to be filed. 

While this sounds like a reasonable course of action for all parties involved, she reveals that "Rule 41 has been in effect for one year now and it seems as though it’s still not being adhered to."

All legal practitioners have a deadline of September 1st 2021 to comply with Rule 41, failure to do so will result in the court declining to hear the matter. 

Also read: Local divorce mentor on how to have the divorce talk with kids

Consequences

While attorneys and lawyers may be tempted to withhold this information from their clients, either to retain their business or to increase their fee, there are consequences for legal professionals who fail to make this clear to their clients. 

"In Case Law Brownlee vs Brownlee, both representative attorneys were penalised and their fees were capped as a result of not informing their clients that mediation could resolve their matter sooner and at a lower cost," Pedro says. 

So make sure you know your options before you commit to a court appearance.

Chatback:

Share your stories and questions with us via email at chatback@parent24.com. Anonymous contributions are welcome.

Don't miss a story!

For a weekly wrap of our latest parenting news and advice sign up to our free Friday Parent24 newsletter.

Follow us, and chat, on Facebook and Twitter.

We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For only R75 per month, you have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today.
Subscribe to News24