Mediated Settlement Agreements in South Africa: A Judicial Review

Abstract

The research question of this thesis is a simple one: when should a court review a settlement agreement? In South Africa, mediation as an alternative dispute resolution tool is a popular mechanism for aggrieved parties in commercial disputes, where litigation may be limited or inappropriate in the circumstances. Where a mediation concludes with a settlement agreement, and one of the parties then regrets his or her acceptance of the agreement, he or she may approach a court of law for legal review. However, when dealing with a mediated settlement that is primed for legal review, there is uncertainty in the law. There are no fixed rules to guide a court in determining when the legal review of the mediated settlement agreement is appropriate. Judicial review raises complex questions that sit at the intersection of public policy and the constitutional freedom to contract in South Africa, yet the law provides no coherent framework for assessing when judicial review of a settlement agreement is appropriate. Examining the law of legal privilege; confidentiality and without prejudice settlements, and how these principles might affect the legitimacy of the legal review of a mediated settlement agreement, this research reveals that there are no legal tests to be used by the courts, and, that this is an area of the law of mediation that is in need of urgent reform.

Searching for a new fount of knowledge in terms of alternative dispute resolution, this research plumbs South African labour law to ask whether we can use labour law principles to supplement our understanding of the legal review of mediated settlement agreements. This thesis contends that by using principles from South African labour law cases and related legislation, the law of mediation in South Africa can be supplemented and developed. This thesis will show that individual labour law principles, public policy and overarching constitutional norms can provide useful contributions to private, voluntary mediation. It will be argued, by way of doctrinal analysis, that South African labour law has the capacity to augment the jurisprudence of mediation in South Africa, specifically where the suitability of judicial review of a mediated settlement agreement needs to be assessed. Building on this analysis of labour law, the thesis develops the concept of variables as a novel theoretical framework for indicating whether judicial review of the settlement agreement is likely.

Further developing this framework, suggestions are offered as to how such variables might be used to inform reform in this area of law. These reforms, should they be adopted by the South African legislature, would provide the courts and legal practitioners with a cogent and well-articulated framework to use when assessing whether the legal review of a mediated settlement agreement is apt.