Mediation as a Tool to Manage and Resolve Class Actions
Author: Theo Broodryk
Affiliations: BA LLB LLD (Stell), Associate Professor and Manager: Law Clinic, Stellenbosch University
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 226 – 248
The importance of managing class actions effectively is evidenced by the fact that manageability problems could potentially result in the termination of a class action. This article evaluates court-annexed mediation as a tool that our courts could utilise to assist it in managing, and possibly resolving, class actions. The article considers mediation to be a valuable case management tool, even when it fails to lead to immediate settlement of the dispute. Where it does not result in settlement of the dispute, mediation may nevertheless have value from the perspective of, for example, a potential partial settlement of the dispute or by providing a party with valuable information of the other party’s case. Ultimately, however, mediating disputes may have the effect of relieving our superior courts’ high caseload, as well as shielding the parties and the courts from the high costs and delays generally involved in civil litigation. This article considers the mediation approaches in prominent foreign jurisdictions, including Australia, Canada and the United States of America, with a view to evaluating whether and to what extent they could find application within a South African context.