Mediation as a tool to manage and resolve class actions

• Jurisdiction: South Africa
• Citation: (2020) 31 Stell LR 226
• Author: Broodryk, T.
• Pages: 226-248
• Date: 12 October 2020
• Published date: 12 October 2020

226

MEDIATION AS A TOOL TO MANAGE AND

RESOLVE CLASS ACTIONS

Theo Broodryk

BA LLB LLD (Stell)

Associate Professor and Manager: Law Clinic, Stellenbosch University

Abstract

The importance of managing class actions effectively is evidenced by the fact

that manageability problems could potentially result in the termination of a

class action. This article evaluates court-annexed mediation as a tool that

our courts could utilise to assist it in managing, and possibly resolving, class

actions. The article considers mediation to be a valuable case management

tool, even when it fails to lead to immediate settlement of the dispute. Where

it does not result in settlement of the dispute, mediation may nevertheless

have value from the perspective of, for example, a potential partial settlement

of the dispute or by providing a party with valuable information of the other

party’s case. Ultimately, however, mediating disputes may have the effect of

relieving our superior courts’ high caseload, as well as shielding the parties

and the courts from the high costs and delays generally involved in civil

litigation. This article considers the mediation approaches in prominent

foreign jurisdictions, including Australia, Canada and the United States of

America, with a view to evaluating whether and to what extent they could

nd application within a South African context.

Keywords

Class actions, mediation, court-annexed, judicial management

1 Introduction

Because of the difculties generally encountered in managing class action

litigation,1 effective judicial management is considered to be increasingly

1 Parts of this article are taken from a chapter in the author’s doctoral dissertation entitled Developing

a Structure for the Adjudication of Class Actions in South Africa, supervised by Professors

J du Plessis and W de Vos and completed at Stellenbosch University in 2017.

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(2020) 31 Stell LR 226

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MEDIATION AS A TOOL IN CLASS ACTIONS 227

important for the proper functioning of class actions.2 Class action3 litigation

is traditionally more complex than other forms of litigation. Accordingly, it

requires greater administration and management of the case.4 Various aspects

of class actions necessitate judicial management. For example, class actions

involve unidentied and absent parties whose interests require protection.

They also require making administrative arrangements for the giving of

notice, the distribution of monetary relief as well as the establishment of

procedures for the determination of individual issues.5 The unique nature of

the class action mechanism necessitates a change in the court’s traditional

role – it essentially requires that our judges become more active in managing

civil litigation. It is simply not feasible for the parties to be solely responsible

for the management of a class action. Rather, “judges are required to step

outside the usual passive role assigned to them by the traditional adversarial

model of litigation and actively to take part in such management”.6 The

size and complexity of class actions necessitate a more hands-on judicial

management approach compared to ordinary civil litigation. As such, class

action judges must become actively involved in the litigation.7 Manageability

2 C Piché “Judging Fairness in Class Action Settlements” (2010) 28 Windsor YB Access Just

111 121. CS Diver “The Judge as Political Powerbroker: Superintending Structural Changes in

Public Institutions” (1979) 65 VA L Rev 43 45 states that the “transformation in the character of

litigation necessarily transforms the judge’s role as well”.

3 The following denition of class action by R Mulheron The Class Action in Common Law Legal

Systems A Comparative Perspective (2004) 3 was endorsed by the Supreme Court of Appeal

in Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd

(Legal Resources Centre as amicus curiae) 2013 1 All SA 648 (SCA):

“A class action is a legal procedure which enables the claims (or parts of the claims) of a

number of persons against the same defendant to be determined in the one suit. In a class

action, one or more persons (representative plaintiff) may sue on his or her own behalf and on

behalf of a number of other persons (the class) who have a claim to a remedy for the same or a

similar alleged wrong to that alleged by the representative plaintiff, and who have claims that

share questions of law or fact in common with those of the representative plaintiff (common

issues). Only the representative plaintiff is a party to the action. The class members are not

usually identied as individual parties but are merely described. The class members are

bound by the outcome of the litigation on the common issues, whether favourable or adverse

to the class, although they do not, for the most part, take any active part in that litigation.”

4 According to PG Karlsgodt “United States” in PG Karlsgodt (ed) World Class Actions – A Guide

to Group and Representative Actions around the Globe (2012) 44, a tool that is regarded as useful

in managing class action proceedings in the United States is to require the submission of a trial

plan. The trial plan sets out the claim(s), the relief, the witnesses and evidence that will be used to

prove the plaintiffs’ claims at the trial. See also Piché (2010) Windsor YB Access Just 117.

5 V Morabito “Judicial Supervision of Individual Settlements with Class Members in Australia,

Canada, and the United States” (2003) 38 Texas International Law Journal 663 672.

6 E Hurter “Some Thoughts on Current Developments Relating to Class Actions in South African

Law as Viewed Against Leading Foreign Jurisdictions” (2006) CILSA 39(3) 485 489. See also

R Miller “Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the ‘Class Action

Problem’” (1979) 92 Harv Law Review 664 667-668.

7 C Piché “The Cultural Analysis of Class Action Law” (2009) 2 J Civ L Stud 101 128, 130. See also

the discussion below regarding the limits imposed on a judge when managing a class action.

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