1. We have fielded a number of queries from various Insurers regarding the draft Directive, circulated by the office of the Judge President of the Gauteng Division of the High Court of South Africa, introducing obligatory mediation in the Gauteng Division of the High Court and the impact it may have on the industry.
2. The draft Directive, which proposes an effective date of 14 April 2025, seeks to introduce obligatory mediation upon litigating parties. The Judge President explains that the need for the introduction of obligatory mediation arises from the fact that:

“Currently the majority of cases on the Civil Trial roll, are capable of resolution through mediation, settlement or other alternative dispute resolution means. These are the cases that take up a sizeable portion of the Civil Trial rolls and inevitably cause deserving cases to wait for inordinate long periods for a hearing …

The diversion of cases capable of being resolved/settled after effective mediation by professional mediators is an appropriate method of dispute resolution to institutionalize in the processes of the Court. This option will ensure that only cases that deserve a judicial resolution will land on the trial roll.”

3. The Judge President provides three reasons for the introduction of compulsory mediation:
4. 1 the intrinsic common-sense approach of the mediation process itself;
5. 2 the report of the Law Reform Commission and its draft Mediation Bill which provides for mandatory mediation;
6. 3 the application of obligatory mediation in other jurisdictions has demonstrated a global policy shift in favour of mediation as an effective option to guarantee effective access to justice and courts.
4. The draft Directive in its current state, however, has far-reaching implications for litigants. The Judge President has proposed the introduction of two periods applicable to the new procedures for civil trials, they are:
4. 1 for the period commencing 1 January 2027; and

1. 2 for a transitional period from the issue of the Directive until 31 December 2026.

5. The procedure applicable to the Civil Trial roll during the transitional period from 14 April 2025 to 31 December 2026 distinguishes between Road Accident Fund and other Civil Trials, but in summary the trial dates, which are not related to Road Accident Fund cases which have already been allocated during 2025 shall remain intact but all matters for which trial dates have been allocated in 2026 shall be subject to the delivery of a mediator’s report that is presented to the Civil Trial Registrar within thirty (30) days before the trial date. Only if the mediator’s report is presented will the case be heard and if no mediator’s report is presented, the trial shall be struck from the roll with no order as to costs.
6. All trial dates allocated to cases from 1 January 2027 are cancelled and will require a new set down to be issued, which such set down being accompanied by a mediator’s report. This will be the procedure for any new matter that requires a set down date on the Civil Trial roll, should the draft directive be adopted.
7. This means that if an Insurer is a Plaintiff in a matter, it must immediately deal with the requirement that a mediator’s report will need to be procured and delivered to the Civil Trial Registrar. In order to comply with the requirement that a Mediator’s Report be delivered, the parties will need to conduct a mediation and appoint a mediator. It is unclear as to who will appoint the mediator if the parties cannot agree on the identity of the mediator, although it appears that this will be dealt with in the Protocol, which will be published with the Directive.
8. This new Directive may very well delay any litigation set down during 2025 and 2026 and will most definitely delay any trial set down after 1 January 2027 in that those trial dates have now been cancelled and will need to be set down again with a mediator’s report.
9. It is very easy to see a situation arising where, for example, there is a recalcitrant Defendant in a subrogated recovery claim, and the Defendant is refusing to mediate or is non-responsive, it may well result in the Insurer having to approach the Court, by application, for an order compelling the Defendant to submit to mediation. This will not only delay matters but also increase the costs of the litigation.
10. Mediation is a form of alternate dispute resolution. It is explained as follows by Ramsden in his text “The Law of Arbitration”:

“In mediation an independent mediator … attempts to mediate or facilitate the amicable resolution of the dispute. Unlike an arbitrator, the mediator’s role is not to adjudicate the dispute. The role of the mediator is to facilitate the parties in listening to and understanding the other party’s arguments. The mediator does not propose a compromise or settlement or make an adjudication unless the parties have agreed thereto. As with negotiation, the parties reach agreement in the form of a compromise or settlement under their own free will.”1

11. Mediation is therefore only possible if there is a mutual agreement between the parties to subject themselves to mediation. If a settlement or compromise has not been achieved during the mediation process or if a party refuses to take part in the mediation, then a mediator may very well call the mediation to an end and deliver a report recording that the parties were unable to arrive at a compromise or settlement. There is no guarantee that a resolution will be agreed between the parties during mediation.
12. It is always wise to enter into a mediation agreement that identifies the mediator to be appointed and agrees both a procedure and a time frame within which the mediation is to be concluded and the date by which the mediation report is to be delivered. The parties traditionally share the costs of the mediator equally.
13. Mediation is not a new concept in our law and Rule 41A of the Uniform Rules of Court already provides for voluntary mediation between the parties at any stage before judgment is entered.
14. Thankfully, there are a number of bodies that exist that provide mediator training and who are able to assist in appointing mediators to disputes, should the need arise.
15. One must, however, not forget that a mediator cannot make a decision or bind a party to the mediation unless that party agrees to the terms of a settlement agreement or compromise.
16. This may very well be another tool that difficult litigants use to delay matters and to drive up legal costs. We have, however, successfully employed mediation disputes between Insurers and insureds on complex construction-related disputes where the mediator that was appointed was a construction expert and engaged with both parties separately in order to understand the geneses of the dispute and assisted the parties in resolving the dispute and concluding a settlement agreement. This is the benefit of having a skilled mediator.
17. While the draft directive has been circulated, and we expect to receive confirmation as to its publication very shortly, we have seen fantastic results with mediation and hope that similar outcomes can be achieved in this now mandatory process before the Gauteng Division of the High Court.