MEDIATION  RULES
Version 3 (Updated  January  2025 )

1.  Scope of these Rules
   1.1 Where parties have agreed to refer a dispute to Tokiso for mediation, or a Court of Law has referred parties to Tokiso for mediation, and no other Tokiso Rules are applicable , the dispute shall be submitted to mediation in accordance with these Rules, subject to any amendments agreed to by the parties.
   1.2 If the agreement between the parties records that the matter is referred to Tokiso for mediation, conciliation, a conciliatory process, or similar terms, these Rules shall apply, notwithstanding the different terminology.
   1.3 Should the dispute be referred to med-arb, these Rules shall apply to the mediation process in the med-arb.
   1.4 All references to Tokiso shall mean a Tokiso Director or a Tokiso employee mandated to administer mediations.
2. The Commencement of the Mediation
   2.1 A party to a mediation agreement that wishes to commence a mediation shall deliver a notice of mediation to each other party to the mediation agreement in terms of Rule 12.2. and to Tokiso Dispute Settlement (Pty) Limited (“Tokiso”) in terms of Rule 12.4.
   2.2 The notice of mediation shall contain or be accompanied by:
       2.2.1 the names, physical addresses, email addresses and telephone numbers of the parties to the dispute and of any known appointed representatives;
       2.2.2 a copy of the relevant Rule 41A notices, court directive and/or mediation clause or agreement; and
       2.2.3 a brief statement of the nature of the dispute and the outcome sought.
   2.3 The date of the commencement of the mediation shall be the date on which Tokiso receives the notice of mediation.
3. Appointment of the Mediator
   3.1 The parties may jointly agree on a mediator from Tokiso’s mediator panel or agree on a procedure to appoint a mediator.
   3.2 More than one mediator may be appointed by agreement between the parties.
   3.3 Tokiso will appoint a mediator from the list of Tokiso accredited mediators if the parties to the dispute:
       3.3.1 do not agree on a mediator within seven days from the date of commencement of the mediation;
       3.3.2 do not agree on the procedure for the appointment of a mediator or such procedure fails to appoint a mediator;
       3.3.3 appoint a mediator, but the mediator is unable to accept the brief, and parties do not agree on another mediator; or
       3.3.4 request Tokiso to appoint a mediator.
   3.4 The parties may provide agreed considerations on which Tokiso should base a mediator appointment. In the absence of providing considerations, Tokiso may determine the required seniority and expertise of the mediator.
   3.5 Each party shall have three days from the date upon which that party receives the name of the appointed mediator to object to Tokiso’s choice of mediator. If a party does not object within the specified time, the Tokiso appointed mediator shall be deemed acceptable to the parties and appointed as the mediator thereafter.
   3.6 If a party objects to the recommended mediator within the time specified, Tokiso shall appoint another mediator from the Tokiso mediator panel.
4. Preliminary Meeting
   4.1 A party or the mediator may request a preliminary meeting between the parties before the mediation commences. This preliminary meeting shall take place within 21 days from the date of the commencement of mediation unless agreed otherwise by the parties.
   4.2 Tokiso shall schedule the preliminary meeting, which will be managed and presided over by the mediator or a Tokiso-appointed facilitator.
   4.3 The purpose of the preliminary meeting may include:
       4.3.1 confirm the mediation agreement;
       4.3.2 identify the parties and their representatives;
       4.3.3 explain the mediation process, the role of the mediator and what is required of the parties;
       4.3.4 clarify and ensure properly informed consent, authority and mandates;
       4.3.5 agree and confirm the scope of confidentiality;
       4.3.6 agree on whether any expert submissions are required and if so, the manner in which these submissions are given;
       4.3.7 discuss the nature of the dispute and identify any common cause issues;
       4.3.8 agree on the manner in which communication shall take place;
       4.3.9 agree to the logistics of the mediation process, including timeframes, dates, times and venue/online;
       4.3.10 ascertain the administrative support required from Tokiso;
       4.3.11 enquire whether the dispute is of a particularly complex nature and, if so, whether a co-mediator is required; and
       4.3.12 determine arrangements for payment of costs for the mediation if not already agreed with Tokiso.
   4.4 The outcome of this meeting shall be captured in a minute and form part of the mediation agreement.
5. Role of the Mediator
   5.1 The mediator shall endeavour to assist the parties to settle the dispute by agreement.
   5.2 The mediator shall not determine the dispute, recommend a solution to the dispute, or advise a party on the merits of the dispute.
   5.3 The mediator shall promote the settlement of the issues in dispute between the parties in any manner that the mediator believes appropriate but shall have no authority to impose a settlement on the parties.
6. The Mediation Process
   6.1 The mediator shall have the discretion to conduct the mediation of the dispute in such manner as the mediator determines.
   6.2 The parties shall abide by the mediator’s decisions regarding the mediation’s process and conduct.
   6.3 The mediator may communicate through Tokiso with the parties orally or in writing, together or individually, and may convene a meeting or meetings at a physical venue or on an online platform, to be determined by the mediator after consulting the parties.
   6.4 The parties shall cooperate in good faith with the mediator in the conduct of the mediation.
   6.5 Each party must ensure that representatives with authority to consummate a settlement attend the mediation.
   6.6 Where a party privately discloses to the mediator any information in confidence before, during or after the mediation, the mediator will not disclose that information to any other party or person without the consent of the party disclosing it.
7. Termination of the Mediation
   7.1 The mediation of the dispute shall terminate when:
       7.1.1 the mediator receives written notice from a party stating that such party withdraws from the mediation, provided that no party shall withdraw from the mediation without first orally notifying the mediator and giving the mediator a reasonable opportunity to mediate on that party’s continued participation in the mediation;
       7.1.2 the parties agree that the mediation shall terminate and inform the mediator that the mediation has concluded;
       7.1.3 the parties receive written notice from the mediator stating that, in the mediator’s opinion, there is no reasonable prospect of a settlement and, therefore, the mediator terminates the mediation; or
       7.1.4 the parties conclude a written agreement in which the parties set out the terms upon which the parties settle the dispute or any part thereof (the “settlement agreement”), provided that the parties and mediator may agree in writing to continue the mediation in respect of any part of the dispute that remains unsettled after the conclusion of the settlement agreement.
8. Effect of the Mediation
   8.1 Any agreement reached in the mediation will not be legally binding until it has been reduced to writing and signed by or on behalf of the parties.
   8.2 If the parties settle the dispute or any part thereof in a settlement agreement, that settlement agreement shall be a final and binding settlement of the dispute or such part thereof, as is applicable.
   8.3 If a settlement agreement is not reached in the mediation, the parties’ submission of the dispute to mediation shall not prejudice any of the parties’ rights.
9. Reports and Certificates
   9.1 Subject to Rule 9.2, the mediator shall provide a report and/or certificate if required by Statute, a Court of Law, a party’s procurement policy or another operational purpose, or by agreement of the parties. Such a report and/or certificate will confirm that the mediation took place, the parties’ names, the parties’ attendance, the date of the mediation, a brief description of the dispute, whether the parties participated in good faith in terms of Rule 6.4, and whether the dispute was settled. No details of the discussions or the substance of the dispute shall be included in the report and/or certificate.
   9.2 Where the mediation agreement provides that the mediation and/or the existence of the dispute itself is confidential, and there is no legal requirement for such a report and/or certificate, the mediator shall not issue a report or a certificate.
   9.3 Any reports and certificates shall be sent to all parties to the mediation.
10. Confidentiality
    10.1 The mediator may not disclose to any person (other than a party) any information first obtained during the mediation of the dispute without the prior written consent of the parties unless compelled by law to do so.
    10.2 A party may not disclose to any person (other than the mediator or that party’s professional advisors) any information first obtained during the mediation of the dispute without the prior written consent of the disclosing party unless compelled by law to do so.
    10.3 The parties agree that they will not at any time before, during or after the mediation compel the mediator or Tokiso to give evidence in litigation, arbitration or any other process concerning information disclosed during the mediation of the dispute and the administration of the mediation.
    10.4 Nothing in this Rule 10 shall prevent a party from placing on record after the mediation any information that is substantially similar to information disclosed by that party during the mediation, provided that the party does not state or imply that such information was stated or disclosed during the mediation.
11. Costs
    11.1 Unless otherwise agreed by Tokiso in writing, the mediator’s fees shall be payable in full to Tokiso when the mediator is appointed.
    11.2 Unless the parties agree otherwise or specified otherwise in the mediation agreement, each party shall be liable to pay an equivalent pro-rata share of the mediator’s costs. If one party does not pay its equivalent share, any party may pay the outstanding amount and recover it from the non-paying party.
    11.3 The Parties are bound by Tokiso’s Standard Terms of Conditions of Service.
12. Communication
    12.1 For the purposes of calculating a period of time under these Rules:
        12.1.1 day means a calendar day;
        12.1.2 the first day is excluded, and the last day is included, subject to sub-rule 3; and
        12.1.3 the last day of any period must be excluded if it falls on a Saturday, Sunday or public holiday.
    12.2 For the purposes of these Rules, any notice, including a notification, communication or proposal, is deemed to have been received by a party if:
        12.2.1 it is emailed to an email address chosen by that person to receive service;
        12.2.2 it is emailed from Tokiso Online’s automated email system to an email address chosen by that person to receive service;
        12.2.3 physically delivered to the party; or
        12.2.4 if it is delivered to the party’s habitual residence or place of business.
        12.3 Notice shall be deemed to have been received on the day it is delivered.
        12.4 Tokiso shall receive all service at info@tokiso.com unless directed otherwise by Tokiso.
        12.5 All communication with the mediator must be via Tokiso unless Tokiso agrees otherwise in writing.