For most of the past two decades, the cost conversation about mediation in South Africa was straightforward: it was an optional expense a client could decline. In the Gauteng Division that is no longer true. The cost is now structural, it arrives earlier in the matter than the old settlement conversation did, and the sanction for getting the process wrong is not an adverse order at the end but the loss of a trial date in the middle.
This article describes a transitional regime with dated milestones. The Directive and Protocol have already been amended once, on 27 October 2025, and the position changes again from 1 January 2027. Confirm the current text of the Directive and Protocol before relying on any date below.
What changed in the Division
With effect from 22 April 2025, the Office of the Judge President of the Gauteng Division issued a Directive introducing mandatory mediation, together with a Mediation Protocol. Both were amended on 27 October 2025. The Protocol applies to all civil trials in the Division, including commercial disputes, delictual claims, family disputes and personal injury claims, and it applies uniformly to both the Pretoria and Johannesburg seats.
The word mandatory is doing specific work, and it is worth being precise about it, because clients hear it and assume they are being forced to settle.
The compulsion attaches to engaging with the process, not to settling. No one can be compelled to accept terms. What the Directive does is make meaningful engagement with mediation a condition of access to a trial date. Mediation has become trial-readiness infrastructure rather than a settlement option sitting alongside the litigation.
Nothing in the Directive or Protocol detracts from the parties' existing rights under Rule 41A, or from a judge's power to direct the parties to consider mediation. The underlying rule continues to operate as it always did, as we set out in civil and commercial mediation in South Africa.
The trial date is the pressure point
The enforcement mechanism is not a penalty. It is access to the roll. Without a mediator's report from an accredited mediator, a trial date is not issued, and in the transitional period an allocated date may be lost.
| Situation | What is required |
|---|---|
| Trial date already allocated | The mediator's report must be made available to the court with a practice note 7 court days before the trial date. Failing that, the matter is liable to be struck from the roll. |
| Fresh set-down applications | The mediator's report must be made available to the court 30 court days before the trial date. |
| From 1 January 2027 | No trial date is allocated unless the application is accompanied by the mediator's report, or, in matters before the commercial court, a report by the Judicial Case Manager. |
| Road Accident Fund and habitual litigant matters | Dealt with specifically in the Directive, with their own transitional treatment. Check the current text where the RAF or a provincial MEC is the defendant. |
| Matters not capable of being mediated | Dealt with by joint minute or by the direction of an umpire under paragraph 7.1A, inserted on 27 October 2025. |
The mediator's report itself must be prepared and signed within 10 court days of the mediation, and filed electronically on Court Online together with the joint minute. We deal with the documents individually in Rule 41A mediation documents explained.
“The sanction is not an order against your client. It is the roll. That is a different kind of risk, and it lands earlier.”
Who carries the cost, and when
Two provisions govern the default position, and they say the same thing. Under Rule 41A(9), unless the parties agree otherwise, the mediator's fees are borne equally by the parties participating in the mediation. Paragraph 5.5.3 of the Protocol likewise records the fee split as equal between the parties. In the absence of an agreed split, a mediator will assume equal sharing.
The professional reason for that default is worth explaining to a client who proposes to pay the whole fee in order to control the process. Equal cost-sharing avoids any perception that the mediator is beholden to the party paying the fees. It supports both actual neutrality and the appearance of neutrality, and a mediator will be cautious about any arrangement that undermines either.
Timing is the part that surprises practitioners. The deposit is payable before the session is confirmed, not afterwards, and an unpaid deposit is among the most common reasons a scheduled session does not proceed. In a matter where the trial date depends on a report, a postponement caused by an unpaid deposit is not merely an administrative irritation.
Costs in the cause
Paragraph 5.5 of the Protocol records that while the costs of mediation are typically shared equally, the parties are at liberty to agree any alternative arrangement, and that those costs constitute costs in the cause, recoverable by the party in whose favour costs are ultimately granted at trial.
The mediation fee is not necessarily a sunk cost. It is an item that may be recovered at the end by the successful party, in the ordinary way that costs in the cause operate. That reframes the expense from money spent on a process the client did not want into an item on the eventual bill, and it is a materially easier conversation.
It remains a discretionary matter for the court at the end, and nothing is automatic. But an attorney explaining the cost of a compulsory process to an unwilling client is better served by the accurate position than by treating the fee as irrecoverable.
The real costing challenge
The honest difficulty is not the mediator's fee. It is sequencing and duplication.
- Cost arrives earlier. Under the old approach, serious settlement work often happened close to trial, once pleadings had closed, discovery was complete and the legal team had advised. The Protocol pulls a structured settlement process forward, which means professional time is incurred before some of the information that would inform it exists.
- Preparation is not free. A mediation done properly requires the attorney to identify issues, separate common cause from contested, assess litigation risk and prepare settlement structures. That is chargeable work, and it is real work. Doing it badly to save cost is what produces the wasted sessions that give the process a poor name.
- Two processes run in parallel. The litigation timetable does not disappear. The suspension of time periods under the Rules is limited and is not a suspension of prescription.
- Counsel may attend. Where counsel is briefed for the mediation as well as the trial, the cost profile changes again.
- Expert input. Where the amplified notice raises expert evidence and the possibility of a single joint expert, that conversation carries its own cost.
Set against that, the offsetting benefits are real but should not be overstated. Partial settlement narrows the issues and shortens the trial. The closing joint minute records what no longer requires a hearing, which is a measurable procedural gain. And a matter that settles avoids the trial cost entirely. None of that makes mediation automatically cheaper in every matter, and an attorney who promises that to a client will be answering for it later.
Mid-article
Facing a Protocol deadline and unsure of the position?
Risk one: losing the trial date
This is the risk that distinguishes Gauteng practice from the position elsewhere, and it is the one to explain to a client first.
Where a trial date has been allocated and the mediator's report is not made available with a practice note within the required period, the matter is liable to be struck from the roll. The firm's own materials record that in the transitional terms this occurred with no order as to costs, which means the wasted preparation is not recoverable from the other side. Confirm the current position, but plan on the basis that the consequence is real.
A matter struck from the roll does not simply return next term. It re-enters a queue, and the fresh set-down route carries its own requirement that the report be available 30 court days before the new date. The practical cost is the delay, the wasted brief fees, and a client asking why a process nobody wanted has cost them a year.
The defence is unglamorous. Diarise the report deadline from the moment the mediation is scheduled, not from the moment it concludes, and remember the mediator has 10 court days to produce it. A report delivered on the tenth day, seven court days before trial, leaves no margin at all.
Risk two: the irregular notice
The Protocol changed what a notice refusing mediation has to do. A generic notice which simply rejects mediation without cogent, fact-specific reasons may constitute an irregular notice. The other party may then proceed under Rule 30A and may invoke the delinquent-party provisions of the Protocol.
The courts have been clear about the standard. In Brondani v Brondani [2025] ZAGPJHC 1157 the position was that a refusal to mediate must be properly motivated with cogent, case-specific reasons, and that prior failed settlement attempts and general pessimism about prospects are not sufficient on their own.
That has a drafting consequence. The Rule 41A notice is no longer a form to be completed with a standard paragraph. Where a client's position is genuinely that the matter is unsuitable, the reasons must be specific to the facts, and they should be capable of being defended later. We deal with the notice itself in Rule 41A mediation documents explained.
Risk three: how your client participates
The mediator's report addresses the outcome and the parties' participation. It does not narrate the negotiation, and the confidentiality of what was said is preserved, as we explain in confidentiality in Rule 41A mediation. But how a party conducted itself is visible.
South African authority has consistently reinforced the expectation. In Kalagadi Manganese (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2021] ZAGPJHC 127 the court considered what constitutes good faith participation, treating dishonesty and a failure to attend with the necessary decision-makers as relevant. In Koetsioe and Others v Minister of Defence and Military Veterans and Others [2021] ZAGPPHC 203 the court was clear that a dismissive approach to mediation is not acceptable.
What you say in the room is protected. How you show up is not. Attending without settlement authority, refusing to engage, or treating the session as a formality can be recorded as a participation failure, and the court retains a discretion on costs. No adverse costs consequence is automatic, but the conduct is not shielded.
Risk four: the attorney's own exposure
This risk sits with the practitioner rather than the client, and it predates the Protocol by fifteen years.
In MB v NB 2010 (3) SA 220 (GSJ), the court limited the fees of the legal representatives for failing to inform clients about mediation. The proposition is narrow and the facts were particular, but the principle has not weakened, and the Directive has made mediation considerably harder to overlook. An attorney who does not raise mediation, or who treats the Rule 41A notice as an administrative step, is in a weaker position now than they were then.
The practical protection is a file note. Record that mediation was explained, record the client's instruction, and record the reasons if the instruction is to oppose referral. That note costs nothing to make and is difficult to reconstruct afterwards.
Matters not capable of being mediated
A regime that compelled engagement with no exit would be unworkable, and the Protocol does not do that. The amendments of 27 October 2025 inserted provision for matters not capable of being mediated by virtue of the nature of the dispute, dealt with on production of a joint minute or a direction from an umpire under paragraph 7.1A.
That is the route for the matter which genuinely cannot be mediated, rather than the matter one party would prefer not to mediate. The distinction matters, and the burden of establishing it sits with the party asserting it. Where urgent relief is required, where the real question is the interpretation of an instrument, or where a precedent is the actual objective, the position should be recorded properly rather than asserted in a bare notice.
The Protocol also provides for an umpire where the parties cannot agree on a mediator, which removes the tactical value of simply refusing every name proposed.
Managing the risk in practice
The following is the risk register we work through with referring attorneys on Gauteng matters.
| Risk | Control |
|---|---|
| Trial date lost for want of a report | Diarise backwards from the trial date. Schedule the mediation early enough to absorb the mediator's 10 court day reporting period and still meet the 7 court day practice note deadline. |
| Notice treated as irregular | Draft reasons specific to the facts. Do not rely on prior failed settlement attempts or general pessimism. |
| Session postponed for unpaid deposit | Confirm the fee split in writing at the outset and pay the deposit on receipt of the invoice, not on the eve of the session. |
| Participation recorded adversely | Confirm settlement authority in writing before the day. Ensure anyone whose approval is needed is available. |
| Response period missed | Note that an amplified notice response period may be no less than 15 court days, and that it is stipulated by the initiating party. |
| Suspension misread as prescription | Treat the Rules suspension as limited and unrelated to prescription. Keep the claim clock under separate watch. |
| Attorney exposure on fees | Record on file that mediation was explained and what the client instructed. |
Preparation is the common thread, and it is the subject of attorneys mediation preparation and settlement strategy.
Frequently asked questions
Is mediation compulsory in the Gauteng High Court?
Engagement with the process is, in practical terms, for civil trials in the Division. Under the Directive introducing mandatory mediation a mediator's report is required to obtain or keep a trial date. No one can be compelled to settle, and matters genuinely incapable of being mediated are dealt with by joint minute or by the direction of an umpire.
Who pays for mediation in a Gauteng High Court matter?
The default is equal sharing. Rule 41A(9) provides that the mediator's fees are borne equally unless the parties agree otherwise, and paragraph 5.5.3 of the Protocol records the same position. The parties may agree an alternative arrangement, and the costs of mediation constitute costs in the cause, recoverable by the party in whose favour costs are ultimately granted at trial.
What happens if we do not file a mediator's report?
Where a trial date has been allocated, the report must be made available to the court with a practice note within the required period before trial, failing which the matter is liable to be struck from the roll. For fresh set-down applications the report must be available well in advance of the new date. Confirm the current periods, because the Directive has been amended and the position changes again from 1 January 2027.
Can we simply refuse to mediate?
A notice refusing mediation without cogent, fact-specific reasons may constitute an irregular notice, opening the door to a Rule 30A approach and to the delinquent-party provisions of the Protocol. The courts have held that a refusal must be properly motivated, and that prior failed settlement attempts and general pessimism are not enough on their own.
Does mediation make a Gauteng matter cheaper?
Not automatically, and it should not be presented that way. Mediation adds a cost layer earlier in the matter than the traditional settlement conversation. Against that, a settled matter avoids trial costs entirely, and a partial settlement narrows the issues and shortens the hearing. Whether it is cheaper depends on the matter.
Does the suspension of time periods protect my client's claim?
No. The suspension runs from signature of the Rule 41A(4)(a) minute until the mediation concludes and is limited in duration. It affects time periods prescribed by the Rules of Court. It is not a suspension of prescription, and the claim clock must be watched separately.
About the author
Mervyn Vermeulen
An admitted attorney of the High Court of South Africa and solicitor of the Court of Session in Scotland, a Fellow of the International Academy of Family Lawyers, and a NABFAM-accredited mediator practising in family, divorce and commercial matters.
This article is general information about mediation practice in the Gauteng Division and is not legal advice. The Mediation Directive and Protocol are transitional instruments which have already been amended and which change further from 1 January 2027, so you must confirm the current text before acting. · Tags: Gauteng Protocol · Costs · Litigation Risk
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