Mandatory Mediation comes to South Africa

Tony Allen: Solicitor, Senior Consultant to CEDR, CMC Emeritus Fellow

The Growth of Mediation in South Africa

South Africa has had a long and distinguished history of involvement by skilled neutrals in the settlement of labour disputes, with the establishment of the Independent Mediation Service of South Africa (IMSSA) in 1984 and the CCMA (Commission for Conciliation Mediation and Arbitration) in 1995, a state body with somewhat similar to ACAS, but with a wider remit) being a significant feature of the employment landscape there.

In response to the creation of the CCMA, Conflict Dynamics was set up by Felicity Steadman and John Brand in 1996 to provide training for the first panel of mediators for CCMA’s employment work. In 2007 Conflict Dynamics started training neutrals to deal with commercial disputes more generally, to improve both the speed and flexibility of civil justice. This was done at first by commissioning CEDR to train their already experienced neutrals and newer recruits in this wider field, offering CEDR accreditation in South Africa at a time when CEDR had first identified the possibility of its accreditation being recognised as an international gold standard for mediator skills training. Five courses were run in the first three years and 82 mediators obtained CEDR accreditation.

In 2010 CEDR agreed to Conflict Dynamics using its mediator competencies for their locally aligned mediator skill training course and for Conflict Dynamics accredited mediators to be assessed remotely for CEDR accreditation. There are now a further 273 CEDR accredited South African mediators, many of whom are available on the Conflict Dynamics panel of mediators.  In 2018 Felicity Steadman, one of founders of Conflict Dynamics became the head of CEDR’s training faculty, further cementing the relationship between CEDR and Conflict Dynamics.

Conflict Dynamics have also been deeply involved in the development of mediation within civil justice in South Africa, being consulted by provincial and national government on how mediation might ease the pressures on the civil courts. CEDR has played a small part in this process, having supplied articles for publication and circulation by Conflict Dynamics about developments in England & Wales over the years, contributing and delivering seminars, and meeting with senior judicial civil servants. The first step towards recognising the place of mediation in civil justice was taken in 2014 when rules were introduced in the Magistrates Courts - which have civil as well as criminal jurisdiction - designed to encourage use of mediation, firstly on a pilot basis in two provinces and then more widely. In 2020, Rule 41A was introduced into the High Court Rules which required parties on issue of proceedings to lodge a form detailing their willingness to mediate their dispute.

Talking to colleagues in Conflict Dynamics, however, the effect of these rule changes on growing the use of mediation in commercial and injury disputes has been limited. Old habits – one might even say interests – die hard. As is true the world over, the legal profession and the judiciary are conservative in approach and resistant to change. What is illustrated by the development of mediation in England & Wales is that a degree of activism by senior judges makes all the difference. Mediation would not be in its current state there had it not been for the lead given by judges like Lord Woolf, Sir Henry Brooke, Sir Alan Ward, and Sir Geoffrey Vos MR.

The 2025 mediation revolution in Gauteng

An even more dramatic lead has now been given by the Judge President of the High Court in Gauteng Province – covering Johannesburg and Pretoria, the main commercial hub of South Africa. In a Directive issued to all provincial courts on 22 April 2025 and effective immediately, Judge President Duncan Mlambo has ordered that mediation be tried in every civil case before a hearing date can be obtained.

Some of what Judge President Mlambo says in his Directive is well worth including quoting word for word. He starts by pointing out that the congestion of court lists in Gauteng is particularly dire:

The last occasion the Judicial establishment of the Gauteng Division of the High Court was increased was in 2008, yet the caseload of the Division continued to rise and has now reached unmanageable levels. The state of the Civil Trial rolls, in particular, is a source of serious concern. Civil Trial dates in the Division, are currently issued as far ahead as 2031 i.e. seven years in the future. This state of affairs is self-evidently unacceptable and intolerable. Objectively viewed, this situation is inimical to effective and timeous access to justice, within the meaning of the Constitution, and must be forthrightly condemned as unconstitutional.

He identifies the need for justice to be fairly available to all court users on a timely basis, in a way that is reminiscent of the Woolf reports and the overriding objective in the England & Wales Civil Procedure Rules:

Accordingly, to ensure access to justice and to the Courts, as well as to fulfil the objective of providing an effective litigation service within reasonable timelines, revision of Court processes must be made. It is critical to ensure that cases that genuinely deserve the attention of a Judge are able to be timeously heard. Moreover, it is critical that cases that do not reasonably require a Judge to resolve the parties’ dispute do not clog up the Court roll and consume precious Court time. Currently the majority of cases on the Civil Trial roll are capable of resolution through mediation, settlement, and other alternative dispute resolution means. These are the cases that take up a sizeable portion of the Civil Trial roll and inevitably cause deserving cases to wait for inordinate long periods for a hearing. The statistics of cases accommodated on the Civil Trial roll of this Division evince that up to 85% of them are settled on the morning of the trial date. These are matters where the parties had obtained trial dates two to three years before. Furthermore, a sizeable number of cases per week, are dealt with in the Default Judgement and Settlement rolls of the Division.

The statistic that after many years of waiting for a trial, 85% of cases settle at the door of the court is a reminder of the similarly disgraceful frequency of court-door settlements before the Woolf reforms came into effect in England & Wales in 1999.   Court door settlement benefits only the lawyers, who are freed to do more work for the rest of the aborted trial day. Meanwhile, claimants and defendants and their witnesses have undergone the strain of preparing for appearing in court and journeying to the courts, and the time of expert witnesses has similarly been wasted. The reading and preparation time spent by the judge is also wasted, who will now either have to get immersed at no notice in another case to be tried with minimal preparation, or the judge’s day is wholly wasted and another case which could have been tried undergoes yet more delay. A case which settles at the court door is unarguably capable of settlement at least six months before the trial date and probably much earlier.

Mediation is often regarded as creating an artificial court-door event, compelling parties to prepare their cases sufficiently to be able to settle them confidently and fairly. The Judge President appears to agree with that proposition, as his process for requiring use of mediation shows:

In order to filter the caseload to enable only cases warranting judicial attention to be enrolled, the diversion of cases capable of being resolved/settled after effective mediation by professional mediators is appropriate, to institutionalize in the processes of the Court, a methodology which can ensure that outcome. The introduction of this Directive and the Protocol for Mediation in the Gauteng Division must be understood in this context.

One of his explanations for the good sense of the proposed reforms, as well as their constitutionality, relies on international experience, as to which he comments that:

the application of mandatory 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. These developments are calculated to safeguard the effectiveness of the Courts’ capacity to adjudicate cases that truly require adjudication.

A telling phrase from what he says is to institutionalize in the processes of the Court a methodology which can ensure that outcome. Deeming mediation to have been “institutionalized” into civil justice processes echoes or perhaps even outstrips some of the language used in recent years by Sir Geoffrey Vos MR in defining the contribution of mediation to a modern court system.

Striking out trial dates

The bold method deployed by the Judge President in Gauteng to mandate mediation is by vacating at a stroke all civil claim trial dates fixed for after 1 January 2026, some of which have been fixed seven years in advance. In order to re-secure a trial date, a report must be filed to demonstrate that mediation has been genuinely tried and not led to settlement. As for trial dates already fixed for 2025, these stand, but the trial can only proceed if a mediation report is filed shortly before the return date[1]. If none is forthcoming, the claim is struck out with no order as to costs. A separate Protocol defines various practical features required of the mediation process, including the facilitative nature of the process, the level of mediation confidentiality, the nature of reports required by the court, and the qualifications of the mediators to be used. It is a matter of some pride that the list of approved accrediting organisations for suitable mediators specifically includes CEDR (as well as IMI), with Conflict Dynamics achieving approval as a trainer/provider through its meeting South African standards as an RMO (Recognised Mediation Organisation).

A concern – mediator reports to the court

The kind of mediation prescribed in the Protocol is thoroughly familiar and acceptable to English eyes. Where the Gauteng scheme goes further than England & Wales is in consolidating the position of the mediator as a reporter to the court in a way that has not yet happened here, and this perhaps is the only worrying aspect to this development. Section 7.1.1 of the Protocol provides as follows:

Within ten court days of the conclusion of a mediation conducted under the auspices of this Protocol, the mediator shall prepare, sign, and submit to the parties a report certifying the outcome of the mediation (Mediator’s Report), and, together with the parties, also prepare a joint minute in accordance with the provisions of Rule 41A(8)(b) (Joint Minute), each substantially in the form prescribed in Annexure D hereto[2].

Following completion of a mediation the following information, based on the mediator’s honest and bona fide impressions of the subject matter (subject to the confines of confidentiality relating to the merits of the matter that remain in dispute), shall be recorded in the Mediator’s Report:

7.1.3.1. The mediator’s particulars including:

7.1.3.1.1. the name and conduct details of the mediator who conducted the mediation;

7.1.3.1.2. the RMO under whose auspices the mediator practises; and

7.1.3.1.3. which entity attended to the administration of the mediation in question.

7.1.3.2. Confirmation of issues that have been resolved or are, by agreement between the parties, common cause.

7.1.3.3. Identification of the issues that are (or remain) in dispute.

7.1.3.4. The outcome of the mediation, being:

7.1.3.4.1. Completely successful (i.e. agreement reached in respect of all issues in dispute).

7.1.3.4.2. Partially successful, but mediation incomplete (i.e. agreement reached in respect of some issues in dispute, with agreement to refer unresolved issues to further investigation, negotiation and/or mediation.

7.1.3.4.3. Partially successful (i.e. agreement reached in respect of some issues in dispute, but unresolved issues to be referred to trial).

7.1.3.4.4. Unsuccessful (i.e. no issues could be resolved and thus all issues are to be referred to trial).

7.1.3.5. Should there not have been complete resolution of all issues in dispute as contemplated in paragraph 7.1.3.4.1 above, whether the mediation failed (in whole or in part) due to any one or more of the following aspects:

7.1.3.5.1. Failure to properly comply with paragraph 6.3.2 of this Protocol;

7.1.3.5.2. Failure of one or more of the parties to attend the mediation;

7.1.3.5.3. One or more of the parties failed to properly prepare for the mediation (i.e. the representatives attended the mediation without having familiarised themselves with the facts and the relevant documents pertaining to the matter or could not make pertinent documents available to or accessible by the mediator during the mediation);

7.1.3.5.4. Logistical issues - such as connectivity, availability of suitable facilities, system-related challenges, etc. - prevented the commencement, continuation or completion of the mediation;

7.1.3.5.5. The representative/s attending on behalf of a party did not hold, or could not evidence to the mediator's satisfaction, a proper mandate to mediate and/or settlement authority as contemplated in paragraph 6.3.2(iv); or

7.1.3.5.6 If the mediator considers that it is pertinent and necessary to make such disclosure - state if the parties (or any one of them) unreasonably failed to participate and engage with the mediator in good faith and/or unreasonably failed to attempt to resolve one or more of the issues in dispute.

7.1.3.6. To the extent that the mediation has resulted in the partial resolution of the matter – the Mediator’s Report should stipulate whether the remaining issues are suitable for referral to mediation or need to be referred to court for a hearing and determination thereof.

7.1.3.7. To the extent necessary, provide proposed feedback on process efficiency and suggestions for improvement.

7.1.4. The particulars referred to in paragraphs 7.1.3.2 and 7.1.3.3 and any agreement in respect of the limitation of issues which need not be dealt with by the trial court should also be set out in the Joint Minute in terms of Rule 41A(8)(b) and (c) and such Joint Minute may be made available to the court at the commencement of the trial. Save as aforesaid, the Mediator’s Report shall not form part of the court bundles and shall only be disclosed to the presiding Judge to consider in the determination of the issue of costs after the merits of the matter have been decided.

This has been quoted at length because it is clearly controversial for mediators and the health of mediation in general. Some requirements demand joint input from the mediator and the parties, like trying to define what issues remain unresolved, which surely is a matter for the parties in relation to the unconcluded litigation – almost a matter of amended accurate pleading - and not a mediator who has no responsibility for the merits of a dispute. What is far more concerning is the passage in bold italics above, providing that when the dispute was not completely resolved, the mediator’s report should include reasons for this, based on the mediator’s “honest and bona fide impressions of the subject-matter”, including (most controversially of all) the mediator’s view as to whether any, or presumably all, parties failed to participate in good faith, “if the mediator considers that it is pertinent and necessary to make such disclosure”.

The Judge President inevitably wants to ensure that mediation is as effective as possible in clearing the logjam in court lists, and fears (perhaps rightly) that parties will attend as a tick box exercise and make no effort to settle. But any mediator will fear that to be under an obligation to report one or all parties to the court for not trying is going to subvert the fundamental values of the mediation process, such as confidentiality, evidential privilege, freedom to settle or not without criticism, and above all the trusted and neutral mediator as a facilitator of the process and not a judge. There is considerable unease among Conflict Dynamics mediators about this provision, and perhaps representations will lead to changes. Mediators have always been prepared to take responsibility for encouraging reluctant parties (and there have been many in England & Wales over the years driven into the process by dispute resolution clauses on contracts, fear of costs sanctions and (since Churchill) court orders. Once they attend, it is for mediators to “sell” the advantages of having a risk-free chance to see if acceptable settlement terms can be found, without blocking the way back to court if not. The experience in Ontario, Canada, when mandatory mediation was introduced in 1997, was of initial resistance and some box ticking, especially in Toronto, but in time it has become an accepted part of the civil justice landscape. It is to be hoped that the Gauteng judges will trust the power and international success of the mediation process and the skills of South African mediators in delivering swifter and better outcomes to parties, rather than hazarding this initiative by imposing requirements that might undermine what makes it work. Maybe there is a price to pay (or at least to be negotiated and agreed) for a closer relationship between mediators and judges, but one which neither compromises the independence and neutrality of the mediator, nor compels breach of mediation confidentiality. At present an English mediator is not technically “an officer of the court” who owes any defined duty to the court. This is surely appropriate.

Further Growth or Further Opposition?

The impatience with an unacceptable status quo which the Judge President’s Directive illustrates is dramatic and clear indeed. His apparent power to institute such a fundamental reform on his own initiative and in exercise of powers conferred upon him personally may well be the subject of jealous admiration among reforming English judges, where change has to make its bureaucratic way through the deliberations of the Civil Procedure Rules Committee.  The Gauteng reforms clearly match - if they do not exceed - the changes wrought by Churchill and the October 2024 amendments to the Civil Procedure Rules. Unsurprisingly for legal professionals who fear loss of income and status, a constitutional challenge by unsettled lawyers has already been made to and rejected by the Constitutional Court in South Africa, so proceedings are being redirected to the Gauteng High Court. It will be interesting to see who feel able to act as the judge.  Whether the Gauteng initiative will spread to other South African provinces remains to be seen. A Mediation Bill with national effect has already been drafted and has been under discussion for some time there.

CEDR’s International Work

Meanwhile CEDR can take satisfaction for its part in developing the growth of mediation in South Africa. This though is only one of many stories of ways in which CEDR has become an international player, invited or sent into jurisdictions all over the world to train mediators and, when its advice has been sought, to contribute to thinking about how to introduce and develop the use of mediation in civil jurisdictions of all kinds. CEDR has trained mediators from all over Europe, and many of those who currently attend its Mediator Skills Training (MST) courses in London are from overseas. It runs regular courses in Dublin, Paris and Madrid. During the last 25 years, CEDR has run mediator skills training courses leading to CEDR accreditation in Ireland, Pakistan, Greece, Türkiye, Lebanon, Egypt, Armenia, Georgia, Moldova, Mongolia, Kazakhstan, the Gulf States, Nigeria, Kenya, Rwanda, Hong Kong, Bangladesh, India, Barbados and others. CEDR has even run several MST courses in the USA, where CEDR accreditation is viewed as a means of securing international recognition as a mediator. CEDR provides international training for the Ismaili Community, which has a long and distinguished record of offering services of reconciliation in and outside its community. Other institutional hirers include the International Finance Corporation (IFC, part of the World Bank), the UN, UNHCR and NATO.

CEDR has always been a relatively small organisation in terms of full-time employees, but its influence worldwide has been disproportionately huge, quite apart from its thought leadership role within England & Wales and provider of mediation services and training.

CEDR has been wonderfully fortunate to attract a large body of mediators to populate its panels of mediators, and its teaching faculty, a number of whom are based abroad in countries where CEDR has worked in past years. The story in South Africa is just one of many such stories of which CEDR can be proud.

Sources

[1] In road accident claims defended by the Road Accident Fund, the report must be filed no later than seven days before the trial date: for all other civil clams the report is required no later than thirty days before the trial date

[2]   These forms effectively set out the requirements made by Section 7.1, leaving space for the answers