Gauteng court directive aligns mediation in public and private litigation

The court issued a mediation directive (‘the directive’) as part of a revised court process aimed at providing parties with an “alternative mechanism for the determination of their disputes”.

Alternative dispute resolution (ADR) has become increasingly vital within the South African litigation climate, where the judicial system faces challenges of overwhelming caseloads, ever-changing court procedures and the effectiveness of ongoing technological innovations intended to enhance procedural efficiency.

The Mediation Directive and Protocol

The directive provides “from the 22nd of April in term 2 of 2025, the registrar of the civil trial roll shall not issue a trial date unless the request for a trial date is accompanied by a mediator’s report as contemplated in the protocol”. This protocol (‘the protocol’) confirms that a mediator’s report is a report which is prepared, signed and submitted by the mediator “certifying the outcome of the mediation”.

This shift, grounded in rule 41A (mediation as a dispute resolution mechanism) of the Uniform Rules of Court represents a deliberate move towards more ADR mechanisms aimed at alleviating the severe backlog in the civil trial roll.

According to the directive, the rationale for its issue is rooted in the judicial system aim to provide “an effective and expeditious litigation platform that guarantees access to justice service, within the contemplation of the constitution”. According to the directive, as of February, the division’s civil trial roll has trial dates issued as far ahead as 2031. By institutionalising mediation as a prerequisite to litigation, the aim is to not only expedite dispute resolution, but to also ensure that judicial resources are reserved for matters than genuinely require court intervention.

Mediation protocol

The protocol became effective from 22 April with aims to provide a structured standardised yet flexible framework for implementing court-annexed mediation in the Gauteng Division High Courts.

Paragraph 2 of the protocol outlines its objective: to establish a structured, standardised yet adaptable framework for the implementation of court-annexed mediation within the Gauteng Division.

While arbitration is intended to be a faster and more cost-effective to alternative litigation, is often suffers from procedural delays and inefficiencies due to lack of proactive case management. The mediation protocol addresses these shortcomings by offering a streamlined, front-loaded process that can resolve disputes before they escalate to arbitration or court. This not only reduces the burden on the judiciary but also preserves commercial relationships through less adversarial means.

Selection of mediators 

Paragraph 5 (mediator selection and allocation procedures) of the protocol provides a clear framework, detailing both the mediator selection criteria and the procedural steps involved in appointing mediators.

Paragraph 5.1.1 defines a qualified mediator as a person who:

• complies with the minimum requirements for approval as qualified mediator as set out in Annexure A (qualification requirements);
• complies with the standards as set out in Annexure B (standards for recognised mediation organisations); and
• works within a framework of professional accountability.

Recognised mediation organisations

The question for the court then becomes one of how best to ensure the consistency and standard of mediators. Taking the requirements and standards associated with the protocol into account, the judicial system has ensured that the process of mediation is streamlined and accessible by providing parties involved in the mediation the choice to select a qualified mediator from South Africa’s recognised mediation organisations (RMOs).

RMOs are responsible for the supervision of members and must ensure that all mediators comply with their codes of conduct, policies, procedures, rules and guidelines irrespective of whether the qualified mediator is acting in a mediation administered by that particular RMO.

As of 12 June, the organisations that are recognised as RMOs include, but are not limited to:

• Arbitration Foundation of Southern Africa (AFSA)
• Association of Arbitrators (Southern Africa)
• Mediation Society of South Africa (MSSA)
• Royal Institute of Chartered Surveyors (RICS)
• South African Association of Mediators (SAAM)
• Tokiso Dispute Settlement (Pty) Ltd (Tokiso)

The involvement of the RMOs provides several advantages. For instance, it enhances accessibility to mediators, which reduces barriers to entry for parties seeking mediation, especially in urgent matters which need to be resolved to ensure the continuation of a date or project. The RMO also promotes professional oversight and accountability.

What comes next?

Given the well-documented history of prolonged litigation and heavily congested court rolls in South Africa, it is entirely reasonable for litigants to question whether the transition to mediation will be an effective solution.

In addition, with mediation set to become the norm rather than the exception as originally envisaged in rule 41A of the Uniform Rules of Court, the role of the judiciary may evolve from that of an arbiter of disputes to a steward of dialogue facilitating not only legal resolution, but social cohesion, redefining the very nature of legal engagement in South Africa.

The introduction of mandatory mediation in the Gauteng Division of the High Court signifies a substantive shift in South Africa’s civil justice system. Informed by proactive judicial measures, the initiative reflects a commitment to timely dispute resolution and judicial efficiency. Empirical data from the South African Law Reform Commission indicates settlement rates of 50% to 70% in pilot mediation projects, affirming mediation’s efficacy as a cost-effective mechanism that reduces litigation burdens and enhances access to justice.

Parties involved in a dispute may raise concerns that the directive for compulsory mediation conflicts with their constitutional right of access to the courts, as enshrined in section 34 of the constitution. It is our considered view that the directive is structured to uphold this right by limiting its application to matters not requiring judicial adjudication. This ensures that cases brought before the court have already been heard through mediation, thereby streamlining judicial proceedings because mediated matters provide the court with a clearer understanding of the issues, facilitating more efficient dispute resolution. Evidently, this aligns with the principle of exhausting alternative remedies before litigation, as embedded in procedural rules, and ultimately serves to expedite rather than impede access to justice.

The success of this initiative now rests with RMOs, mediators and the parties themselves. A proactive and informed approach at the outset of mediation, combined with a commitment to procedural integrity, will be essential.

Co-written by Lesego Moloto of Pinsent Masons.