Mandatory mediation in the Gauteng High Court
Effective from 22 April 2025, the Office of the Judge President of the Gauteng Division of the High Court issued a Directive introducing mandatory mediation in the Gauteng Division, together with a Mediation Protocol. The Directive provides that mediation in civil trials is now mandatory in the Division.
The effect on trial dates
In the transitional period from 22 April 2025 until 31 December 2026, and in matters involving the Road Accident Fund, trial dates allocated in term 2 of 2025 remain intact. Dates allocated in terms 3 and 4 remain provisionally on the roll if a mediator’s report is made available to the court with a practice note 7 court days before the trial date. If no report is made available, the matter will be struck from the roll with no order as to costs. All trial dates allocated in 2026 are withdrawn and parties must apply for a fresh set down date, with a mediator’s report made available to the court, 30 court days prior to the trial date.
In civil trials not involving the Road Accident Fund, 2025 trial dates remain intact and 2026 trial dates require the parties to file the mediator’s report 30 court days prior to the trial date.
All trial dates allocated after 1 January 2027 are withdrawn. From 1 January 2027, no trial dates will be allocated unless the application is accompanied by the mediator’s report or, in cases before the commercial court, a report by the Judicial Case Manager.
Uniform Rule 41A
Under the Protocol, mediation is initiated in terms of Rule 41A and the normal time periods set out in the Uniform Rules of Court apply. If a Rule 41A notice has been delivered, an amplified Rule 41A Notice can be delivered. This requires a response within 5 to 15 court days. Where the parties cannot agree on a mediator, a responding amplified Rule 41A Notice must provide alternative mediators from three different recognised mediation organisations (RMO) for the initiating party to select from. The Protocol makes provision for the appointment of an umpire if the parties cannot agree to the appointment of a mediator.
Who is a mediator?
Mediators must be qualified graduate professionals who have successfully completed a mediator training program affiliated with a South African University in line with internationally accepted mediation accreditation requirements or otherwise accredited by the Dispute Settlement Accreditation Council of South Africa (DiSAC), the National Accreditation Board of Family Mediators (NABFAM), the International Mediation Institute (IMI), or the Centre for Effective Dispute Resolution (CEDR) or, alternatively, has been recognised as duly trained by virtue of the RMO’s policy on the recognition of prior learning.
Mediation proceedings
Parties must enter into a mediation agreement in terms of Rule 41A(4)(a) and (b). This mediation agreement must comply with the Mediation Protocol. Litigants can refer a dispute to mediation by an RMO or through the Technology Group Software electronic platform.
For the duration of the mediation, time periods prescribed by the Rules of Court are suspended from date of signature of the Rule 41A(4)(a) minute to conclusion of the mediation. This can be no longer than 30 days unless agreed to by the parties or authorised by the court.
The mediator’s Report is required to apply for a trial date and must be lodged with the Registrar for Civil Trials in accordance with the Directive. This Report must substantively comply with the Protocol and needs to be completed within 10 court days of the mediation. This Report and the joint minute must be electronically filed on Court Online.
Matters settled from mediation proceedings may be enrolled on the settlement roll. Where there is non-compliance with the Directive, parties may make use of the Special Interlocutory Court to compel compliance with the Directive and Protocol.
What does this mean for the insurance industry?
For those involved in civil litigation in the high courts in Gauteng this adds another complexity and cost to litigation. Except in Road Accident Fund matters the parties are expected to bear the costs of the mediation, including the costs of the mediator. Where mediation is successful, in part or in whole, litigation will be beneficially curtailed or ended. Where a mediation is unsuccessful the process will add another layer of delay, complexity and costs, direct and indirect, to all the parties. The Mediation Protocol may prove practically difficult to implement within the time periods expected in complex insurance disputes. Not the least problem is the availability of a sufficient number of competent mediators at a reasonable cost.
The Gauteng Legal Practice Council in its submissions in the draft directive raised concerns regarding the legality of the directive. The directive may be subject to challenge by the LPC or others.
Documents can be downloaded below:
MEDIATION PROTOCOL FOR THE GAUTENG DIVISION - 22042025 (pdf)
DIRECTIVE ON MEDIATION IN THE GAUTENG DIVISION - 22042025 (pdf)
