The Judge President Gauteng Division of the High Court (“the JP”) issued a directive
introducing mandatory mediation into the Gauteng Division of the High Court with effect
from 22 April 2025.
This directive was issued in an endeavour to find a solution to the problem that trial dates
are being allocated for matters to be heard in 2031. This in the words of the JP is
“unacceptable and intolerable …. and must be forthrightly condemned as unconstitutional”.
Mediation is an alternative dispute resolution procedure that has been around since the 5 th
century C.E. Mediation has evolved over time and is an art in the hands of a skilled
mediator.
Mediation if successful will:
costs the litigant substantially less than running a trial;
resolve the issues in dispute within a shorter time period. The advantages are self-evident certainly where one must wait many years for their trail to be heard before a Judge.
Generally the problem with mediations is that, with the best will in the world, a mediation
will fail if the mediating parties are unwilling to compromise or make concessions to
achieve an amicable resolution to the dispute.
In the writer’s experience a competently run mediation by a skilled, experienced and
qualified mediator is a pleasure to conduct. Unfortunately the converse is also true i.e, a
badly run mediation is frustrating and amounts to a waste of time and costs.
Litigating parties no longer have the option as to whether to mediate or not as in terms of
the Directive:
all civil trials that have been allocated from 1 January 2027 will be removed from the roll; and
“no case shall be issued a trial date unless the request is accompanied by a report on the mediation as contemplated in the Protocol, given by either an accredited mediator or, in the case of matters certified to be heard in the commercial court, a report on the mediation as contemplated by the Protocol, by the judicial case manager”; and
all civil trials other than Road Accident Fund matters allocated in 2026 will only be heard if a mediator’s report is presented to the civil trial Registrar 30 days before the trial date, failing which the matter will be struck from the roll with no costs order.
The court has prepared a substantive mediation protocol to provide a structured
standardised framework for implementing mediation within the Gauteng Division of the
High Court with a view to, inter alia, “Enhancing access to Justice by providing an efficient,
cost effective and less adversarial method of resolving disputes.”
As from 1 May 2025 Fluxmans has added a skilled accredited mediator to its team who
can assist litigious parties in hopefully resolving their matters by mediation failing which he
can issue the required mediator’s report recording the unsuccessful mediation to enable
the parties to enrol their matter for a trial date.
