Mandatory Mediation in the Gauteng High Court

Mandatory Mediation in the Gauteng High Court: What the Public and Litigants Need to Know

A major change has taken place in the Gauteng Division of the High Court: mediation is now compulsory in all civil trial matters. This new directive fundamentally changes how lawsuits progress and affects every person or business involved in litigation.

If you are a plaintiff, defendant, or potential litigant, this article explains what the directive means for you, how it affects your matter, and what steps you will now be required to follow.

Why the Court Has Introduced Mandatory Mediation

The Gauteng High Court’s trial roll has become severely congested. Some trial dates were previously scheduled many years into the future. To address these delays and ensure quicker access to justice, the Judge President has introduced a system aimed at resolving disputes earlier and avoiding unnecessary trials.

Most civil cases can be settled without a full trial. Mediation creates an opportunity to do exactly that.

The Court has now made it clear: disputes must be mediated before they may be heard by a judge.

What This Means for Your Case

Whether you are already involved in litigation or considering instituting proceedings, the following principles now apply:

1. You cannot get a trial date unless you first mediate

   A case can only be placed on the trial roll if the parties have attended mediation and a Mediator’s Report has been filed with the court.

   
   

2. All trial dates scheduled for hearings after 1 January 2027 have been cancelled

   If your case had a distant trial date, that date has been withdrawn. You will now need to comply with the mediation process before applying for a new date.

   
   

3. If you refuse to mediate, you must give valid reasons

   A simple refusal is no longer allowed. The court requires detailed, case-specific reasons explaining why mediation cannot resolve even part of the dispute.

   
   

4. Mediation is confidential

   Discussions and settlement proposals cannot be used against you later unless reduced to a written settlement agreement.

   
   

5. Mediation may resolve the entire dispute, part of it, or none of it

   Even partial resolution is valuable. It can shorten a future trial and reduce legal costs.

   
   

How the Mediation Process Works

The Court has formalised a clear process that all litigants must follow:

Step 1: Exchange of Rule 41A Notices

Both parties must deliver a detailed notice indicating:

• whether they agree to mediation,

• proposed mediators,

• issues agreed and issues in dispute,

• any expert evidence expected, and

• timelines for further steps.

  
  

This notice is now comprehensive and forms the starting point of the mediation process.

Step 2: Appointment of the Mediator

The parties attempt to agree on a mediator. If they cannot agree, the matter is referred to a judge (called the “Umpire”), who appoints a mediator. This appointment is binding.

Step 3: Signing of Mediation Documents

Before mediation takes place, the parties must sign:

• a Joint Minute, and

• an Agreement to Mediate confirming confidentiality and settlement authority.

  
  

Step 4: The Mediation Session

The mediation may take place:

• in person, or

• through an online video conference.

  
  

Parties must attend personally or ensure that the representative attending has full and proper authority to negotiate and settle. The mediator facilitates discussions and helps the parties explore whether settlement is possible.

Step 5: Mediator’s Report

Within a short period after the mediation concludes, the mediator submits a report confirming:

• what was resolved,

• what remains unresolved,

• whether the mediation was successful, partially successful, or unsuccessful,

• and whether any party acted unreasonably.

  
  

This report must be filed with the court before the case can move forward.

Why Mediation Benefits You

The new system offers several advantages:

1. Faster dispute resolution

   Successful mediation can resolve a dispute within weeks or months instead of waiting years for a trial.

   
   

2. Cost savings

   A full trial can be extremely expensive. Mediation is significantly more cost-effective.

   
   

3. Reduced risk

   Settlement allows control over the outcome, rather than placing the matter in the hands of a judge.

   
   

4. Privacy

   Unlike court proceedings, mediation is confidential and conducted privately.

   
   

5. Narrowing of issues

   Even if the matter doesn’t settle, mediation often shortens the trial by identifying what is really in dispute.

   
   

What Happens If the Other Party Refuses to Participate?

If one party refuses to cooperate, delays the process, or refuses to appoint a mediator:

The opposing party may approach a special court designed to deal with such conduct. The judge may issue a compelling order forcing compliance. The non-cooperative party may face punitive costs or sanctions. A claim or defence may even be struck out in serious cases.

The directive is designed to ensure that no party can sabotage or delay the process.

What It Means for People With Existing Court Dates

If your trial was set for 2027 or later:

• Your trial date has been cancelled.

• You will need to complete mediation before you can apply for a new date.

  
  

If your trial was set for 2025 or 2026:

Different rules apply depending on the year and type of matter (e.g., RAF cases). However, in most situations, a Mediator’s Report will still be required, failing which the matter may be struck from the roll. Your legal representative can advise you on the deadlines that apply to your specific case.

Conclusion

The mandatory mediation directive represents a significant shift in the litigation landscape in Gauteng. It aims to reduce delays, promote efficient resolution of disputes, and ensure that court time is reserved for cases that truly require a judicial ruling.

For clients and members of the public, the key takeaway is simple: mediation is now an essential part of litigation — not an optional one. Every civil case must go through this process, and compliance is crucial to moving your matter forward.

If you are involved in a dispute and want guidance on how mandatory mediation affects your rights and obligations, our practice is ready to assist you with every step of the process.