Mediation moves to centre stage in Johannesburg through the Gauteng Protocol Effect

The case of Brondani v Brondani arose in the context of an assault, with both parties involved in the assault claiming payment of damages from one another. The defendant was ordered to cooperate in the appointment of a mediator to try and resolve the dispute, despite being adamant that the dispute could not be mediated.

What makes this case significant is the application and enforcement of the Gauteng Mandatory Mediation Protocol – or to give it its full title, “Directive introducing Mandatory Mediation in the Gauteng Division and the Protocol thereto” - which is unique to the High Courts in the Gauteng province, where the busiest commercial courts in South Africa are located.

The protocol was introduced to address severe backlogs, promoting a more cost-effective and less adversarial dispute resolution process that would ensure mediation is not treated as a mere formality. In doing so it created a structured, enforceable framework for alternative dispute resolution that reduces delays and encourages meaningful engagement between parties.

Under the Protocol, parties must comply with stricter requirements than those usually required of litigants in the standard framework that regulates the conduct of proceedings across the various other High Courts in South Africa.

‘Cultural shift’

The judgment has clear benefits. It promotes efficiency in the Gauteng courts, which are severely backlogged, and aligns with global trends toward alternative dispute resolution. However, it also raises critical questions. Does mandatory mediation undermine the voluntary nature of mediation? Could judicial enforcement of alternative dispute resolution tilt bargaining power or create pressure to compromise? These concerns highlight the tension between efficiency and fairness in litigation.

The result of this is a judgment that signals a major cultural shift. Courts are actively steering parties toward mediation, reshaping the dispute resolution landscape.

Practically, legal teams must now adapt. Compliance with the Gauteng Mediation Protocol is no longer optional. Litigation strategies need to be updated, and practitioners will require updated training on mediation procedures and contract drafting that anticipates mediation as a key step.  This development also aligns with global Alternative Dispute Resolution trends and ESG principles.  Energy and mining companies, in particular, face growing pressure from investors and stakeholders to adopt less adversarial and more collaborative dispute resolution methods.

Ultimately, the Gauteng Mediation Protocol offers a structured approach to easing court backlogs, it also challenges traditional notions of party autonomy. Mediation is no longer peripheral, it regularly features as a pre-arbitration step in many commercial contracts, particularly in the energy and mining sectors and has now become significant in the Gauteng High Courts. Legal practitioners must prepare for this shift as mediation is now a critical step of the dispute resolution process and litigation strategy. Pinsent Masons is uniquely positioned to assist clients in navigating this shift with accredited mediators within its ranks.

Brondani v Brondani sets a precedent that will influence dispute resolution in South Africa, and we expect to see other High Courts in South Africa to follow suite.