Mandatory Mediation: The 2025 Gauteng High Court Protocol Explained

MANDATORY MEDIATION: MEDIATION PROTOCOL DIRECTIVE EXPLAINED 

On 22 April 2025, a new directive was issued by Judge President Dustan Mlambo of the Gauteng Division of the High Court, introducing mandatory mediation in the Gauteng Division for civil matters. This means that all matter will require mediation before a trial date can be allocated. This article will explain in detail the reason behind the introduction of this directive, the initial and amplified Notices under Rule41A, the recognised mediation organisations for mediators to be appointed, the effects of non-compliance under the directive and what the future holds for all matters before different high court divisions. 

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Court-annexed mediation was introduced to be conducted according to the Gauteng Division Mediation Protocol in order to clear the several delays and backlog in civil matters that were faced by litigants in the High Court, by attempting to provide cost effective, quicker and less adversarial dispute resolution solutions and improving litigants’ access to justice. Further, it addresses the problem faced by litigants of trial dates being allocated too far out and promotes collaboration and communication between litigants who may have resolved their dispute through mediation to begin with. 

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RULE 41A – INITIATION AND AMPLIFIED NOTICE 

The process is initiated by a Notice in terms of Rule 41A, for all action and application matters. The initiating party shall deliver a Rule41A Notice stating whether they agree or oppose the referral of the dispute to mediation. 

In addition, parties who are yet to apply for a trial date, and notwithstanding having delivered the initial Rule 41A Notice, parties shall deliver an amplified Rule 41A Notice, which states the litigating parties’ admission of the matter to mediation, the named and relevant details of the proposed mediators, the common causes, the disputes, if the disputed facts may be resolved by admissions and whether there will be a need for expert evidence.  A Mediator’s Report or a Joint Minute (Umpire’s Direction) will be submitted and a trial date will be allocated thereafter. 

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RECOGNISED MEDIATION ORGANISATIONS

An appointed mediator needs to be chosen from a recognised mediation organisation; this will enhance how litigating parties access mediators and ensure they are properly qualified and have received their certification, by taking into account that these organisations’ members need to comply with the required code of conduct, policies, procedure and professionalism. Examples of these organisations include the following:

1. Association of Arbitrators (Southern Africa)
2. Arbitration Foundation of Southern Africa (AFSA)
3. South African Associated Mediators (SAAM)
4. Mediation Society of South Africa (MSSA)

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NON-COMPLIANCE WITH MEDIATION DIRECTIVE 

Should a litigating party refuse to cooperate in the mediation face the following consequences:

1. The non-cooperating party faces being declared a delinquent party
2. The cooperating party may make an application for contempt of court, to strike out the non-cooperating party’s claim or defence and ask for punitive costs
3. Enrolment of the matter on the Default Judgment roll
4. Legal representatives who obstruct the process risk professional misconduct  

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Alternative dispute resolution has become important in South African litigation. The success of this mediation protocol in Gauteng will have an effect on how the rest of the provinces further handle litigation and dispute resolution. Out attorneys at Van Deventer and Van Deventer Incorporated are ready to assist clients in appointing qualified mediators and ensuring the mediation directive is complied with.