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National Land Transport Act, 2009 (Act No. 5 of 2009)

Regulations

Regulations on Contracting for Public Transport Services

7. Mediation

 

(1) Either party may start the mediation proceedings by giving the other party not less than seven days' written notice that the matter must proceed to mediation.

 

(2) The parties must each in Writing nominate a mediator for not less than ten years, within 14 days after receipt of the notice to proceed to mediation, and if the parties cannot agree on one mediator within a further seven days, the Association of Law Societies of the Republic of South Africa shall be requested to nominate a mediator within fourteen (14) days after the request.

 

(3) The Parties must commit themselves in every respect to the speedy finalisation and solution of the mediation proceedings.

 

(4) Either party may furnish the mediator in advance with written documentation and information and must make the same available to the other party.

 

(5) The mediator must establish and regulate procedures for the mediation so long as the parties continue to agree to participate in the mediation process.

 

(6) Mediation is a voluntary process, and may be terminated at any time by a party on written notice to the other.

 

(7) The mediator must give each party the opportunity to present its case by means of written or oral representations and to submit settlement alternatives, and the mediator must aid the parties in reaching a mutually acceptable agreement.

 

(8) The mediator must record the settlement reached by the parties, if any, and request them to sign the draft settlement within three days after a settlement has been reached and give a copy thereof to each party.

 

(9) The Parties must pay the costs of the mediator in equal shares, unless the mediator orders one party to pay a larger share or the full amount.

 

(10) The signed settlement shall be final and binding on both parties.

 

(11) The mediator shall not have the power to render a binding decision or award in the dispute other than the order contemplated in subregulation (9), nor will he or she be empowered to force any party to settle the dispute.

 

(12) Any information, documentation and material disclosed or made available to the mediator privately or in caucus will remain confidential and will not be disclosed by the mediator or any party without the prior consent of the party who made available such information, documentation or material.

 

(13) Mediation will take place on a confidential and "without prejudice" basis, and the parties—
(a) may never subpoena any person who is a party to or who is involved in the mediation, including the mediator, for the purpose of giving evidence as to what took place during mediation; and
(b) must ensure that the confidentiality of the mediation process is assured.

 

(14) Notwithstanding subregulations (12) and (13), any person may be called to testify—
(a) as to the existence or not of a written agreement between the parties concluded during the mediation;
(b) whether a party had signed such agreement; or
(c) regarding the cost ruling of the mediator contemplated in subregulation (9) or the facts relied upon by the mediator in this regard.

 

(15) If the parties are unable to reach a settlement within 60 days the mediator must certify this in writing and either party may institute proceedings in the appropriate court for settlement of the dispute or the matter must proceed to arbitration if the contracting authority decides that the matter is urgent, in terms of regulation 8.