A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.


INTRODUCTION
In this article, we identify and discuss the main reasons why court-annexed mediation (hereafter CAM) has not been as successful as the government had envisaged when it embarked on the CAM project in 2014. In the first part, we elaborate on the CAM project in South Africa and highlight its challenges and shortcomings, thus permitting us to make suggestions for its improvement. In the second part, we bolster these suggestions by drawing on lessons that can be learned from the Lagos State model of the Multi-Door Courthouse (hereafter MDC) in Nigeria.

Introduction of voluntary court-annexed mediation in South Africa
Voluntary CAM was introduced in 2014 through promulgation of the Amended Magistrates' Court Rules. 13 It started as a pilot project in nine Gauteng magistrates' courts and three North-West magistrates' courts. 14 In 2018, CAM was extended to the regional divisions of the magistrates' courts in Gauteng,Limpopo,Mpumalanga, From 2019, CAM has been introduced in all provinces, with the designation of further courts to apply the mediation rules in the regional divisions of the magistrates' courts in the Eastern Cape, Free State, KwaZulu-Natal, Northern Cape, and Western Cape. 16 The expectation was that parties would be able to resolve disputes faster and more cost-effectively. 17 Despite the apparent potential and advantages of CAM, the uptake was unfortunately not as expected. 18 We will elucidate on the reasons for this regrettable state of affairs below. Essentially, budgetary constraints on the side of government, the prevailing adversarial culture in the legal profession, and substantive concerns about the enacting legislation contributed, in our view, to the inadequate uptake of CAM.

Court-annexed mediation rules
The voluntary CAM rules were inserted as Chapter 2 in an amendment to the rules regulating the conduct of proceedings of the magistrates' courts of South Africa. These rules were drafted by the Rules Board for Courts of Law and approved by the Minister of Justice and Constitutional Development in terms of the Rules Board for Courts of Law Act 107 of 1985. 19 The rules set out the procedure to follow when parties elect to voluntarily submit their civil dispute to mediation. 20 The rules apply to disputes referred for mediation prior to or after the commencement of litigation. 21 When a dispute is referred for mediation after the commencement of litigation, it can be done either before trial starts or before judgement is given at the trial. 22 The court can also ask the parties whether they would be willing to refer the dispute for mediation before or during trial, but before judgement. 23 Clerks of the court in district courts and registrars in the regional courts fulfil important functions and duties during the mediation process. They must explain the purpose, meaning, objectives, costs, and savings of mediation to parties; that the parties themselves are liable for a mediator's fees, and that they may be assisted by legal representatives. 24 In addition, they must assist parties to conclude a written agreement to mediate. 25 Rule 80 sets out the role and functions of the mediator. In essence, the mediator has a facilitative role as an impartial third party who assists the disputants in resolving their dispute. 26 If the parties reach a settlement, the mediator must assist them in concluding a settlement agreement. 27 This agreement is a binding and enforceable contract. 28 It can also be made an order of court. 29 If no settlement was reached, the parties have a right to pursue litigation to resolve their dispute. 30 turn, helps foster trust in the civil justice system. 38 The cost-saving potential of mediation is acknowledged by the state's proposed mediation policy. This policy is an initiative that aims to transform state legal services. To save on the costs of civil litigation, it requires state attorneys and state agencies to consider mediation when first attempting to resolve a dispute. 39 The Department of Justice and Constitutional Development expects that this policy will increase the "percentage of litigation cases settled through mediation from 24 [per cent] in 2017/2018 to 50 [per cent] in 2020/2021". 40 CAM is non-adversarial in nature and allows parties to maintain good relationships with each other. 41 Mediation outcomes are not limited to existing legal remedies. 42 It enables parties to tailor outcomes that meet both sides' specific needs and interests. In addition, it is more informal than litigation and is not bound by complex procedural rules and requirements. 43 It is also flexible enough to adapt to many kinds of civil justice disputes such as, for example, commercial, community, and family disputes. 44 The decision of Brassey AJ in MB v NB 45 has lent judicial support for mediation. In this divorce matter, the court held that mediation could provide a practical and fair alternative to protracted litigation, and that it saves time and money compared to the long and drawn-out process of litigation. This increases access to justice to the broader public. 46 Despite its numerous advantages, CAM has not been as successful as was hoped. 47 The reasons for CAM's challenges are discussed below. Understanding these reasons is critical, since CAM is promoted as a mechanism to improve access to justice. 48

Efficacy (or otherwise) of court-annexed mediation in South Africa
Currently, no comprehensive empirical study that investigates the successes and failures of the CAM pilot project is available, 49 because it is difficult to study the costs and benefits of CAM, compared to litigation. 50 The difficulty further lies in the confidential nature of mediation, which is an obstacle to research. This leads the vast majority of studies relying on settlement rates and participant surveys to measure the success of mediation in the formal justice system.
Moreover, empirical data on the success rate of mediation in South Africa is non-existent. This may be due to the confidential nature of the process and no statutory duty to report on concluded mediation cases. Although mediators are required to file reports of the outcome of the mediation with the clerk of the court in CAM matters, 51 statistics on the success rate are not available. 52 Consequently, it is uncertain whether the theoretical advantages of CAM would materialise in practice, and what their impact might be. 53 An equally important factor is that CAM is a relatively new addition to the South African civil justice system. Moreover, the Department of Justice and Constitutional Development has failed to properly report on the CAM project. It is, however, apparent that, in its Annual Report of 2019/2020, the Department of Justice and Constitutional Development states that it had planned to refer 65 per cent of civil cases for mediation, but that this target was not met, as no civil cases were referred for mediation. The Department does not elaborate on the reasons for this deviation from its planned target. 54 According to the 2017/2018 Annual Report, the target was also not met, and the Department merely states that "there was no data available for the proclaimed courts due to the high turnover of critical staff". Nothing further is stated on this issue. 55 In the 2018/2019 Annual Report, it is also mentioned again that the planned target was not met. The  does, however, not explain or elaborate on this statement. 56 Given this state of affairs, it is safe to assume that the intended success of the CAM project is yet to materialise.
The following analysis draws on the limited research available in this field. After analysing government reports, literature, and investigations into the efficacy of the voluntary CAM rules, certain key factors have emerged as challenges to its success. A discussion of these challenges follows.

Cost of mediation
Despite the low-cost benefit of mediation compared to litigation, the reality is that many South Africans cannot afford even this lower cost, in order to resolve their dispute. 57 The issue of cost was identified as a barrier to using CAM one year after the implementation of the programme. 58 In its 2018/2019 Annual Report, the Department of Justice and Constitutional Development identified the issue of cost again when it deviated completely from its planned target of successfully mediating 60 per cent of civil cases. 59 According to the Portfolio Committee on Justice and Correctional Services, it is crucial to consider "the high cost of mediation services". 60 Currently, level 1 and level 2 mediator fees are R225 and R300 per half an hour of mediation with a maximum daily fee of R4500 and R6000, respectively. 61 For this reason, the Department of Justice and Constitutional Development has deemed it necessary to draft regulations to address the issue of costs. 62 These regulations will entail the provision of free mediation services to the public in certain circumstances. The intention is to refer disputes to community advice offices. In addition, it will refer disputes to attorneys who must conduct community service in accordance with the requirements of the Legal Practice Act. 63 At the time of writing this article, the Department has not yet implemented the proposed regulations. In our view, doing so must be prioritised as a matter of urgency.
The South African Law Reform Commission has urged the Legal Practice Council to encourage its members to deliver free mediation services. 64 Moreover, not only does Patelia propose that legal aid for mediation be given, but the South African Law Reform Commission also supports free mediation services for the indigent. 65 The Commission proposes a means test based on a sliding scale of income to determine eligibility for state-funded mediation. 66 We are of the opinion that such a means test and the attendant provision of state-funded and/or free mediation services provided by legal practitioners in accordance with their responsibilities imposed by the Legal Practice Act will do much to enhance the role of CAM in South Africa.

Budgetary constraints
A lack of financial support is among the root causes of the inefficacy of CAM in the lower courts. Slow economic growth resulted in budgetary constraints within the Department of Justice and Constitutional Development. This created an obstacle for the roll-out of CAM. 67 In both its 2016/2017 and 2017/2018 annual reports, the Department of Justice and Constitutional Development indicated that, due to the reprioritisation of funds, it was unable to implement the CAM initiative as anticipated. 68 As will be noted, significant capital input is necessary for CAM to succeed. avenue of dispute resolution within the civil justice system. 69 Apart from outlining CAM on its website, it is unclear to what extent the Department of Justice and Constitutional Development has pursued a public awareness campaign or what it would have involved. 70 It is, however, important that a large-scale and well-directed public awareness campaign be launched, if the government wants CAM to succeed.
Mabusela's study (2019) shows that public awareness is key to ensuring CAM's success. 71 For this reason, he recommends educating the public and conducting awareness campaigns about the benefits of mediation over litigation. 72 Significant capital input is, therefore, necessary to create public awareness about mediation. The following discussion elucidates the authors' substantive concerns with the voluntary CAM rules. We propose certain amendments to the CAM rules and practices so as to increase their efficacy.

Issues to consider in the potential amendment of courtannexed mediation rules and practices
The effectiveness and viability of the current voluntary CAM rules are subject to much debate. 73 Only key aspects of the rules are discussed below, as we hold the view that they have an immediate impact on the success of the CAM programme.

Voluntary versus mandatory mediation
In terms of the current CAM rules, mediation is voluntary. This means that parties have a choice to resolve their dispute through either mediation or litigation. Conversely, a system of mandatory CAM compels parties to first mediate and only if they fail to reach an agreement through mediation, to pursue the matter through litigation. 74 Whether mandatory CAM should be embraced in South Africa is a question that must still be answered. 75 69 Patelia "Implementing mediation in the formal legal system: A South African perspective", 20, http://documents.pub/document/implementing-mediation-in-theformal-legal-system-a-south-african-perspective.html (accessed on 2 June 2020). Much of this debate turns on the impact of mandatory mediation on sec. 34 of the Constitution. 76 Brand argues that, legally, there can be no constitutional objection to mandatory CAM, since parties are not barred from approaching the court if they cannot reach an agreement through mediation. This does not impede upon the constitutional right to access courts (or other fora) in terms of sec. 34. 77 Mabusela argues that legislative support for mandatory CAM in the civil justice system has been laid by existing legislation that mandates mediation. 78 Among legal professionals surveyed, he found that 81.6 per cent agreed that, as a matter of procedure, parties should be directed to mediate before they litigate. 79 It is beyond the scope of this article to enter into the debate on whether mediation should be mandatory or not. Nevertheless, we take the view that this debate would largely become irrelevant if our suggestions below -to the effect that Rule 41A of the Uniform Rules of Court should apply in the lower courts -were to be adopted.

Accreditation of mediators and training standards
The Qualification and Standards for Accreditation of Mediators were published in October 2014 in accordance with Rule 86 of the Magistrates' Court Rules. To become accredited mediators, applicants must complete 40 hours of contact training consisting of both theoretical and practical components. 80 This 40-hour minimum is in line with international minimum standards for mediator accreditation. 81 According to Mabusela, theoretical aspects of the training such as studying principles of civil procedure require more time. 82 We do not agree with this assertion, because mediation within the CAM framework requires only a basic overview of the civil process. 83  More importantly, the quality of mediator training is problematic, because mediation courses and training institutions are currently not required to be accredited. 87 Therefore, the CAM rules should include some form of accreditation standards for mediator-training institutions. 88 This would ensure that, when mediators apply to be voluntary CAM practitioners, the credentials that they present to the Minister are credible. 89 According to Mabusela, the quality of training is crucial for the successful roll-out of CAM. 90 Britz proposes that mediator qualification be carried out by the Dispute Settlement Accreditation Council (DiSAC). 91 This institution aims to provide a uniform system for the accreditation of dispute-resolution practitioners. Moreover, it provides certification of good standing and qualification that is supported by the industry. Currently, the accreditation of mediators is voluntary since there is no obligation on them to be accredited. According to Britz, knowing that a mediator meets the minimum industry standards for practice, through their accreditation from DiSAC, will provide the public with peace of mind. 92 Mabusela argues that the training of mediators should proceed with the support and oversight of the Office of the Chief Justice as part of the Judicial Accountability programme. 93 This is because of the formal nature of CAM as a dispute-resolution method within the civil justice system. He contends that mediator training and accreditation should not be left to voluntary and private institutions such as DiSAC. 94 A final point of concern is that the 84

Functions and duties of clerks and registrars
Allen raises concerns about using clerks and registrars in the way that the CAM rules require. These concerns are mainly related to their experience, training, and the importance of keeping mediations confidential. Furthermore, managing the mediation process is part of a wide set of administrative court duties to be performed by clerks and registrars. As a result, they may be too busy to perform their mediation duties efficiently and effectively. 97 Brand endorses Allen's suggestion to outsource CAM administration to an expert, independent mediation provider. This would eliminate concerns about clerks and registrars, because the provider would administer CAM professionally, efficiently, and cost-effectively. 98 If, however, clerks and registrars are to continue to perform duties under the mediation rules, it is important for the success of CAM that they be trained and remunerated adequately. 99 This would require significant capital investment, which, due to budgetary constraints, presents a challenge to the successful implementation of CAM.

Role of legal practitioners
The unwillingness of legal practitioners to propose mediation to their clients is another key obstacle to CAM's success. 100 This unwillingness stems from both the adversarial nature of the legal profession and the perception of weakness of proposing settlement instead of litigation. 101 Legal practitioners also view mediation as a disruption to their profession with decreased income potential. 102  Mabusela suggests using codes of conduct, regulations, and laws to impose a duty on the profession to consider mediation before litigation. 105 This approach is expressly provided for in Uniform High Court Rule 41A. 106 However, legal practitioners' unwillingness to propose mediation to their clients is underscored by the Directive of the Limpopo Division of the High Court, which states that, due to legal practitioners not complying with Rule 41A after a year of it coming into effect, it will decline to hear matters where the rule has not been complied with. 107 In our view, a similar rule, and even directives, should be implemented in magistrates' courts to encourage the use of mediation by legal practitioners. An alternative suggestion is to include an obligation or recommendation to consider mediation before litigation in the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities as published in terms of sec. 97 of the Legal Practice Act. 108

Sanctions
Encouraging party participation is a challenge for the voluntary CAM initiative. 109 This is especially true when one party is willing to mediate but the other is not, or if a magistrate suggests mediation and the disputants refuse to mediate. The rules do not encourage or prescribe a sanction to compel an unreasonable or unwilling party to mediate. 110 Brand suggests changing the rules to include punitive cost orders against disputants who behave unreasonably by refusing to mediate. 111 The recently amended Uniform High Court Rule 41A compels disputants to consider mediation at the outset of the legal proceedings. If they decide not to mediate, they must substantiate their reasoning. Importantly, the Rule expressly provides that the court may consider the disputants' reasons for not mediating when considering an order for costs. 112 In our view, the implementation of mediation within the formal justice system should be done uniformly. Therefore, a rule similar to Rule 41A should be introduced in the voluntary CAM rules to encourage party participation. Conversely, magistrates who preside over proceedings, where parties unreasonably refuse to mediate, can rely on legal precedent to effect adverse cost orders. This would encourage disputants and their legal representatives to mediate. 113

Confidentiality
Confidentiality and privacy are core reasons why disputants resort to alternative forms of dispute resolution. 114 Confidentiality is both an incentive to participate in mediation and a critical factor in its success. Therefore, any uncertainty about the confidentiality of mediation proceedings is an impediment to the uptake of CAM. 115 Form 15 attached to the CAM rules requires the mediator to state why mediation was unsuccessful. According to Brand, this is inappropriate, because it affects the perceived confidentiality of the mediation process. We agree with Brand's suggestion that this requirement should be removed, and that the mediator should simply state whether the dispute was resolved or not. 116 The intended purpose of reporting the outcomes of mediated matters should provide valuable statistics to measure, among others, the success rate of the project. Sadly, this information that could potentially serve to promote the use of CAM is not available. Private mediators who have no duty to report on the matter conduct the mediation, where parties decide to mediate their dispute following a Rule 41A notice.

Ancillary issues
There are ancillary reasons for CAM not achieving its full potential. First, to achieve success, CAM needs to be monitored and evaluated on an ongoing basis. 117 Monitoring, data collection, and evaluation would allow the Department of Justice and Constitutional Development to improve the programme, 118 and to consider the viability of mandatory CAM. 119 Secondly, the curriculum for the conventional Bachelor of Law (LLB) does little to propagate non-adversarial dispute-resolution methods such as mediation. 120 The introduction of mediation or CAM into the LLB curriculum is, therefore, an essential step to change the adversarial culture and mindset of the legal profession. 121  understanding of the mediation process is essential. Mabusela opines that, if law faculties and societies do basic CAM training, it could stimulate the use and consequent uptake of CAM. 122 Thirdly, the magistrates' courts and magistrates, in particular, have an essential role to ensure the successful uptake of CAM. They must continuously refer disputes, with the potential for amicable settlement, to mediation. 123 As a result, it is important for the success of CAM that presiding officers be trained. 124 In 2018, judicial officers were trained on the benefits and practical implementation of CAM as part of a broader strategy of case-flow management. 125 According to Chief Justice Mogoeng Mogoeng, this training was embarked upon, "because court-annexed mediation has not been successfully introduced by the Ministry in the Magistrates ' Court". 126 Fourthly, it is widely known that corruption, mismanagement, and incompetence are rife within South Africa's government departments. 127 Moreover, the misappropriation of funds and a lack of meritocratic appointments have an adverse impact on the implementation of programmes that are meant to benefit the poor and the marginalised. President Ramaphosa recently stated that corruption robs the poor of services, since those employed to deliver them are not up to the task. The President made this statement following public outrage amidst allegations of corruption related to the COVID-19 pandemic. 128 Within the context of CAM, mention has repeatedly been made of the significant capital outlay required, in order to ensure its optimality. It is, therefore, important and necessary to investigate what impact these issues may have on the implementation and efficacy of CAM, since the right of access to justice is at stake.

LESSONS FROM NIGERIA: THE LAGOS MULTI-DOOR COURTHOUSE
In African societies, ADR is described as the "modern version of an ancient practice"; mediation is one of the traditional mechanisms of dispute resolution in many African communities, including Nigeria. 129 It was one of the main processes used to resolve disputes before the British colonised Nigeria Research Article and introduced the adversarial system of litigation. 130 Similarly, the South African precolonial or traditional dispute-resolution method is enshrined in the customary law concept of Ubuntu. In Afriforum v Malema, the court held that the Ubuntu concept dictates a shift from (legal) confrontation to conciliation and mediation. 131 Traditional dispute resolution in both South Africa and Nigeria is, therefore, concerned with preserving relationships. 132 The Nigerian and South African civil justice systems face similar problems. The vulnerable and poor members of the Nigerian society, much like South Africa's indigent population, find it difficult to use the formal legal system to access justice. 133 In response to these problems, Kehinde Aina founded the Lagos MDC in 2002. 134 An MDC is an innovative institution that directs participants to the most appropriate "door" or ADR mechanism to resolve their disputes. 135 As the first court-connected ADR centre in Africa, the Lagos MDC offers a range of dispute-resolution options, including litigation, mediation, and arbitration. 136 Although parties have a choice between the various dispute-resolution processes available, mediation is actively promoted and encouraged by the Lagos MDC. 137 As a result, mediation is the most frequently used ADR mechanism in Lagos. 138

Overview of the Lagos Multi-Door Courthouse
The Lagos MDC is part of the Lagos State judiciary as a court-connected ADR centre. 139 It handles various disputes in fields as diverse as banking, construction, commerce, employment, and civil rights. 140 It is mostly annexed to high courts, but matters may also be referred from magistrates' courts. 141 This is in contrast to South Africa, where mediation is solely annexed to magistrates' courts in the formal civil litigation milieu. Where parties elect to mediate in the High Court in South Africa, Rule 41A does not regulate the process. Parties are responsible to initiate and manage the process themselves.
The Lagos Multi-Door Courthouse Law (Lagos MDC Law) of 2007 created a legal framework, in which the Lagos MDC could operate. As a courtconnected ADR centre, the objectives of the Lagos MDC are consonant with the key features and goals of mediation that have been set out so far. 142 Matters are most frequently referred to the Lagos MDC through "walk-ins", when parties themselves walk into the centre to resolve their dispute. 143 Referring disputes to the Lagos MDC is usually voluntary. Mandatory court referrals are, however, also possible. 144 The overriding objective of the High Court of Lagos State (Civil Procedure) Rules of 2019 specifically states that the court may mandate parties to use ADR mechanisms where it is appropriate to do so. 145 The 2019 High Court of Lagos State (Civil Procedure) Rules provide that all actions that are instituted at court will be screened, and if they are found to be appropriate to be resolved through ADR mechanisms, they will be referred to the Lagos MDC. 146 These Rules furthermore require a claimant to include a pre-action protocol form, which must be complied with before an action may be instituted at court. 147 The purpose of this protocol is to show that a claimant "has attempted to settle the dispute by ADR methods". 148 Any action filed at court that does not comply with the pre-action protocol requirement will be a nullity. 149 Moreover, the rules provide for case management conferences. The conference takes place after the close of pleadings but before trial starts. During the conference, parties meet with the High Court judge to determine which issues can be amicably settled and which, if any, should proceed to trial. The aim is to prevent delays in court proceedings by dispensing with trivial issues or issues that can be settled through ADR methods. 150 If a settlement is reached during mediation at the Lagos MDC, it can become an order of court. If a settlement is not reached, the matter may can apply to the Fee Review and Pro-Bono Committee to review the fees payable to the Lagos MDC. This is in line with its policy of justice for all. 156 The fee reduction and fee waiver policies of the Lagos MDC, therefore, mitigate the impact on indigent citizens of having to pay for ADR. 157 This feature of the Lagos MDC aligns with Patelia's suggestion to have legal aid for mediation. 158 It also aligns with the South African Law Reform Commission's submission to have a means test, in terms of which parties pay for mediation services on a sliding scale according to their income. As a result, the poor will receive free pro bono services. 159 As alluded to earlier, 160 we recommend that these cost-reduction strategies should also be pursued in South Africa.

Budgetary constraints
An important aspect of the Lagos MDC is that it is a public-private partnership. This allows it to generate funds not only from the government, but also from private institutions and individuals. The Lagos MDC Law provides that the centre can accept funds by way of gifts, testamentary dispositions, aid, and contributions or endowments by organisations or persons. The conditions attached to these sums must be consistent with the functions and objectives of the Lagos MDC. Furthermore, the Lagos MDC may collect fees for the use of its facilities or for services rendered. It can also borrow by way of overdraft facilities or otherwise. 161 In South Africa, a public-private partnership between the Department of Justice and Constitutional Development and an independent, reputable mediation provider would enable the generation of funds from sources other than government. As a result, the implementation of CAM can be improved. South Africa's failure to prioritise CAM is regrettable when considering that ADR supports economic development by reducing the cost of dispute resolution and increasing investment certainty. 162 Resolving commercial disputes amicably preserves business relationships and commercial transactions and thereby encourages foreign direct investment. 163 An effective and efficient civil justice system, therefore, has the potential to improve economic growth by attracting investment. 164

Public awareness
A distinctive feature of Nigeria's approach to create public awareness about ADR is the Lagos Settlement Week, during which disputants can have their cases mediated by the Lagos MDC for free. 165 The objectives of the Lagos Settlement Week include encouraging the use of ADR mechanisms and creating awareness about the effectiveness and benefits of mediation specifically. 166 Importantly, the impact of the Lagos Settlement Week shows the efficacy of mediation as a court-connected ADR mechanism. 167 In South Africa, the Department of Justice and Constitutional Development, in collaboration with the Legal Practice Council, should investigate the possibility of setting aside one week during the year where appropriate cases can be referred for mediation on a pro bono basis.
Other ways in which the Lagos MDC strives to create awareness is by printing and distributing pamphlets free of charge. These pamphlets explain the objectives and rationale of ADR, how the process works, and the suitability of ADR to different subject areas. 168 Other measures that improve public awareness are, first, that the Lagos MDC's advertisements are in the dominant languages spoken in specific locations. 169 Secondly, the Lagos MDC is strategically situated in the court building. When people walk in, they see it and inquire about it. 170 These are important strategies that the Department of Justice and Constitutional Development, along with the judiciary, can employ to improve public awareness about CAM in South Africa.

Accreditation of mediators
To be listed as a mediator at the Lagos MDC, a person must be certified and accredited by a recognised and reputable organisation. 171  In South Africa, the CAM Accreditation Standards for Mediators simply state that, to be a CAM mediator, an applicant must receive training from a mediator-training institution approved by the Minister. 173 However, no list of accredited mediator-training providers is given. It is our view that such a list should have been included in the Court Annexed Mediation Rules when they were published, and an updated list should be kept on the Department of Justice and Constitutional Development's website. We re-iterate our view that only properly trained and accredited mediators should mediate CAM matters. It is worth noting that much of the task delegated to clerks of the court relate to pre-mediation preparation. In our view, an astute and accredited mediator is better equipped to perform these functions and it leads to unnecessary duplication of work.

The role of legal practitioners
Nigeria uses regulations, codes of conduct, and laws to impose a duty on the legal profession to consider mediation before litigation. Mabusela suggests that this should be done in South Africa. 174 Sec. 17 of the Lagos MDC Law, for example, obliges legal representatives to propose the use of mediation if it is the more appropriate mechanism to resolve a dispute. 175 Rule 15 of the Rules of Professional Conduct for Legal Practitioners obliges lawyers to inform clients of the option of using an ADR mechanism such as mediation before continuing or resorting to litigation. 176  accepted for filing. This protocol should indicate and provide evidence of their attempts to settle a dispute through ADR mechanisms. 177 South Africa should adopt the approach of Lagos State, which mandates that legal professionals actively promote and consider mediation for cases in magistrates' courts. The pre-action protocol is similar to, but more stringent than the Uniform High Court Rule 41A, which requires legal practitioners to advise their clients to mediate before pursuing a matter through litigation. As mentioned earlier, 178 we are of the opinion that a rule similar to Rule 41A should also be implemented in the magistrates' courts. The Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities should also mandate legal practitioners to inform their clients of the option to mediate a matter where it is appropriate to do so. 179 As recommended earlier, 180 legal practitioners should be alerted to the possibility of adverse costs orders in the event of an unreasonable refusal to mediate.
To counter opposition from the legal profession, the Lagos MDC creates awareness, by holding workshops and seminars on the benefits, suitability, procedure, and practice of ADR for the legal community. 181 In this way, both judges and lawyers know what to expect from ADR mechanisms such as mediation. 182 Similarly, the South African judiciary, Legal Practice Council, and the Department of Justice and Constitutional Development should embark on public awareness campaigns and conduct training sessions on the process and benefits of mediation.

The role of the judiciary
In Lagos State, the judiciary's role is key in supporting ADR in the following aspects: case referrals, execution and planning, case filtering and selection, review and approval of agreements, discipline, and professional development of mediators. It is, therefore, critical that judges refer unresolved cases that are appropriate for ADR to the Lagos MDC. 183 To enable judges to better understand the process and benefits of ADR, the Lagos MDC has a Case Management Workshops for Judges programme, during which judges review guidelines for referring cases to mediation at the Lagos MDC. 184 South Africa's judiciary is already on the right track in this regard, by having held training sessions for judicial officers in 2018 that focused on case-flow management. 185 The South African judiciary should, however, be given more opportunities to attend workshops and seminars on CAM. The judiciary's support of mediation in cases such as MB v NB and Port Elizabeth Municipality v Various Occupiers shows that it is ready to embrace mediation as an alternative to litigation. 186 As mentioned in the preceding paragraph, the possibility of an adverse costs order as a sanction for unreasonable refusal to participate in mediation is to be encouraged.
The evolution of ADR in Nigeria from pre-to postcolonial processes finally manifested in the creation of the Lagos MDC. As the first MDC scheme in Africa, it has been successful in addressing the challenges faced by the civil justice system. Many of these processes could apply equally well in South Africa.

CONCLUSION
Prevalent defects in South Africa's civil justice system result in a lack of access to justice for the vast majority of South Africans. The need for reform resulted in the introduction of CAM in the magistrates' courts in 2014. With this came the potential for efficient, affordable, and speedy dispute resolution. Despite the numerous advantages of CAM, these have not (yet) materialised in practice. One of the main reasons for this is the inadequate funding from government, without which none of these ideals are achievable. Moreover, the government should urgently implement proposed regulations that would address the impact of costs related to mediation on the indigent population.
The above critical analysis of the implementation of CAM reveals key reasons for its unsatisfactory uptake. Several recommendations were made to address these impediments to CAM's success. The discussion then turned to Lagos State in Nigeria, where court-connected ADR mechanisms introduced through the Lagos MDC were shown to be successful. The aim was to identify mechanisms that South Africa could use to improve its implementation of the CAM programme. These mechanisms are interrelated to the factors identified as impediments to the optimal functioning of CAM in South Africa's civil justice system, and as such provide a number of valuable lessons.
One of our key recommendations was that a rule similar to Rule 41A of the Uniform Rules of Court should be included in the rules of the magistrates' courts. Doing so would achieve uniformity in the way in which the civil justice system approaches mediation in civil disputes. The inclusion of such a rule would create not only awareness about CAM, but also the possibility of mediation as an ADR mechanism, in general. It is important to reiterate that such a rule would not amount to mandatory CAM. The rule would merely put a legal duty on reluctant legal practitioners to advise their clients of the option to mediate, including the potential risk of an adverse cost order where they refuse out of hand to consider the option. Moreover, the rule enables judges to enquire if parties are willing to consider voluntary mediation and, in this way, play an active role in promoting ADR mechanisms. An important and final point on the introduction of such a rule is that it would be aligned with the State's mediation policy, as the rule would oblige state attorneys to consider mediation prior to litigation. In this regard, state agencies should consider including a mediation clause in all agreements to the effect that, should a dispute arise, it will be referred to mediation before the parties consider litigation.
In our view, the improvement of CAM in South Africa in the manners suggested in this article is vital not only in contributing to a move away from conventional adversarial-based dispute resolution, but more importantly -as in the case of Nigeria -in ensuring greater access to justice.