The role of mediation in resolving eviction disputes

How mediation can resolve disputes and keep the case out of court

Rental housing is a minefield. Tenants and landlords alike renege on the commitments they make in the lease agreement. Tenants stop paying rent, landlords refuse to return deposits. Tenants damage property, landlords unlawfully change locks. Tenants sublet without the landlord’s consent, landlords fail to maintain and repair the property. The list goes on. Many of these grievances wind up in the eviction court. But eviction is a costly business (for the landlord) and a painful process (for the tenant). There is a better way to resolve landlord–tenant disputes: mediation.

What is mediation? 

Mediation is a voluntary alternative dispute resolution process in which aggrieved parties seek to resolve a dispute in good faith without the formal involvement of the court.

Benefits  

Taking the eviction process all the way to court costs a lot of time and money and does not always achieve the intended result. Mediation implies both parties are willing to consider mutually acceptable solutions in the best interests of their respective situations and future relationship.  

Mediation negotiations are private, confidential and conducted on a “without prejudice” basis. This principle allows parties to be honest and transparent in their discussions, which is less likely to happen in a high-conflict courtroom scenario. In other words, if the mediation is unsuccessful, nothing discussed during mediation proceedings can be used against the other party in court. Mediation reduces the time it takes to get a result, with less risk and less stress.

Is mediation compulsory? 

Until recently, mediation was not compulsory in dispute resolution and legal action could be taken without delay. However, judges are increasingly of the view that civil litigation should be: 

• Avoided where possible
• Less adversarial and more cooperative 
• Less complex
• More certain with shorter timescales 
• More affordable, predictable and proportionate

In light of this new approach, recent changes have been made to the Uniform Rules of Court to make provision for mediation. Rule 41A of the Uniform Rules of Court makes it mandatory for litigants to consider mediation when instituting any new action or application for proceedings.

This amendment is being incorporated in the draft Rental Housing Regulations in terms of the Rental Housing Act 1999 published on 18 March 2022 (Draft Regulations), which are available for public comment. 

Who can help with mediation? 

A skilled negotiator should be involved in any mediation. Potential mediators include: 

• A law firm specialising in property law, tenancy agreements and evictions
• An independent statutory body like the Rental Housing Tribunal 

What happens in mediation proceedings?

The process is relatively straightforward and can be done over the telephone or by videoconference to remove any logistical barriers and improve efficiency. The mediator guides the discussion and helps the parties identify the issues and arrive at their own solutions. 

Once the parties arrive at an understanding, the mediator draws up the terms of settlement in a written agreement which both parties must comply with. Provided the parties adhere to the agreement, the dispute is considered settled. If the parties are unable to resolve the dispute or fail to adhere to the agreement, the formal legal process can proceed. 

Even if mediation is unsuccessful, it is always worth the attempt to avoid the eviction process. 

For more information

We believe residential disputes should settled as amicably and as cost-effectively as possible.  Mediation saves time, money and aggravation. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban, helping both landlords and tenants with rental housing matters. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on any aspect of rental housing or landlord–tenant relations.

Further reading:

• What to do if your landlord is violating your rights
• Legal reasons for eviction
• Eviction – how to defend against eviction by your landlord
• Eviction FAQ

SD Law

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