THE INTRODUCTION OF COURT ANNEXED MEDIATION IN THE

HIGH COURT AND COMMERCIAL COURT OF LESOTHO

INTRODUCTION

The functions and goals of the Judiciary include providing easy access to justice and the speedy resolution of cases which also aims at the reduction of the backlog of cases in our courts. In an endeavour to achieve these goals, the High Court of Lesotho has introduced a “Multi-door” court house. This envisions a court house with multiple dispute resolution doors or procedures. Mediation is one such alternative dispute resolution door that the court has introduced. It is an alternative to the adversarial dispute resolution system by which a litigant in a case before court,  goes through the entire process of litigation which can be quite lengthy and costly.

Mediation is simply a process facilitated by a neutral third party (the mediator) who assists the parties to the dispute to explore various options and solutions available in order to reach a mutual agreement. The mediator guides the parties as well as encourages and assists them in deciding how to resolve their dispute.

Mediation in courts can be “Court Annexed” or “Court Connected”. The High Court of Lesotho has opted to use court-annexed mediation (CAM) in preference to court connected mediation. The former refers to the mediation of cases filed within the court which means that all civil and commercial cases filed at the court shall go through the mediation process.

Currently, all the designated mediators are the Court personnel, namely Assistant Registrars and Judges’ Clerks who through the assistance of the International Law Institute – African Centre for Legal Excellence (ILI-ACLE), with funding from the Millennium Challenge Account – Lesotho, received intensive training on Mediation theory and practice. The profiles of the Mediation Personnel will be elaborated in subsequent articles.

The mediation process is governed by the High Court Mediation Rules which were published in Gazette No. 48 of May 26, 2011. They were launched on June 3, 2011 by the Honourable Chief Justice.

Mediation is a civil process designed to take a number of logical steps. The following is a summary of the two procedures for referring a dispute to CAM.

A case file is opened in the High Court and in the pleadings each party includes a brief statement indicating whether that party consents to or opposes a referral of the dispute to mediation under the CAM programme. If a party opposes the referral to mediation, then upon proper cause being shown by that party the Mediation Administrator makes a recommendation on that party’s motion for exemption from mediation under the CAM Rules. This process applies to cases filed from the commencement of these Rules.

All pending cases – those filed before the commencement of the CAM Rules– shall be mediated upon referral to CAM of the case by the Judge allocated to the particular case. This can be done at any stage before judgment of such a matter is made.

We now turn to a summary of the benefits of CAM:

BENEFITS OF MEDIATION

As the disputing parties and mediators are participants in the CAM process, the parties in dispute feel that the negotiated settlement is achieved by them.

The process of mediation saves time. This is because the process is meant for a period of two days to a maximum of 30 days as provided for by Rule 10 of the CAM Rules. This means it brings the desired solution quicker for the parties as compared to protracted litigation which may take years before completion. Accordingly, Mediation enhances the speed fo the delivery of justice.

Because mediation is quicker, it can save the costs of a lengthy litigation and the expenses of securing witnesses to court.

Those are the most basic advantages of Court Annexed Mediation,. More will be discussed in the next issue.

For more information please contact:

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375