Clearing the Backlog: Submissions invited on mandatory mediation

What the Directive Means

The directive mandates that all civil cases undergo mediation before being set down for trial. Mediation is a form of alternative dispute resolution where parties attempt to resolve their disputes with the assistance of a neutral mediator. The directive emphasises that cases will only proceed to trial if accompanied by a mediator's report, certifying that mediation efforts were unsuccessful.

When and Where It Will Be Implemented

The draft states that the Directive will become effective on 14 April 2025. This directive is specific to the Gauteng Division of the High Court, which is the busiest high court division in South Africa. It handles approximately 50% of all civil litigation in the country.

Why It Is Being Implemented

The directive is a response to the overwhelming congestion in the court's civil trial roll, with trial dates currently being set as far ahead as 2031. The backlog is attributed to a shortage of judges and the inefficiency of the current system, where 85% of cases are settled on the morning of the trial date. By introducing mandatory mediation, the court aims to encourage the resolution of disputes prior to trial to reduce costs for litigants, and free up judicial resources for cases that genuinely require the court's determination. Mandatory mediation is already a feature of many court systems around the world and there is precedent that demonstrates its effective deployment can reduce the burden on the court.

How It Will Work

The directive outlines the following key points:

Mandatory Mediation: All civil cases must undergo mediation before trial. Mediators will be selected based on established protocols and a mediator's report confirming participation in the process will be issued.

Implementation Timeline:

• Cases set down for trial in 2025 will proceed as scheduled.
• Cases set down for 2026 will require a mediator's report no later than 30 court days prior to the trial date. Cases without such a report will be struck off the roll.
• The trial dates for cases set down from 2027 will be cancelled. Requests for new dates must be accompanied by a mediator's report.

Costs: The costs of mediation will be borne by the parties involved.

How has the proposal been received?

While the directive has been welcomed by some as a necessary step to alleviate congestion, others have raised concerns about its potential to infringe on constitutional rights to access courts

This initiative represents a bold attempt to modernise the judicial process and ensure more efficient administration of justice in Gauteng. It remains to be seen how the directive will be received and implemented in practice. Practitioners are, therefore, encouraged to provide their input on the draft as it will have implications on all civil court matters. There will be a follow up to this bulletin once the directive has been implemented which will aim to unpack its benefits and pushbacks in practice.