Rule 41A has operated since March 2020, but in the Gauteng Division it now sits inside a Protocol that gives each step a consequence. Practitioners who know the rule sometimes find themselves uncertain about the sequence: which notice comes when, what happens if the other side will not agree a mediator, and what has to reach the court before a trial date is safe. This is the walkthrough.
This article describes a transitional regime. The Directive and Protocol were amended on 27 October 2025, and the position changes again from 1 January 2027. Confirm the current text before relying on any period below.
What the Protocol applies to
The Mediation Directive and Protocol took effect on 22 April 2025 and were amended on 27 October 2025. The Protocol applies to all civil trials in the Gauteng Division, including commercial disputes, delictual claims, family disputes and personal injury claims, and it applies uniformly to the Pretoria and Johannesburg seats.
A court dealing with a matter that is not a trial may direct the parties to apply the Protocol. Nothing in the Directive or Protocol detracts from the parties' existing right to refer a dispute to mediation under Rule 41A or by agreement, or from a judge's power under Rule 41A(3) to direct the parties to consider referral.
The compulsion attaches to engaging with the process, never to settling. The mechanism is access to the roll: a mediator's report is required to obtain or keep a trial date. No one can be compelled to accept terms.
The sequence at a glance
Nine steps, in order. Most of the difficulty practitioners encounter comes from treating them as a checklist to be worked forwards, when the timetable only makes sense worked backwards from the trial date.
- Initial Rule 41A notice delivered with the summons or notice of motion, answered by the defendant or respondent.
- Amplified Rule 41A notice where a trial date is at stake or has yet to be allocated.
- Response to the amplified notice within the stipulated period.
- Agreement on a mediator, or proposal of alternatives.
- Referral to an umpire where the parties cannot agree.
- Agreement to mediate and first joint minute signed, with onboarding completed and the deposit paid.
- The mediation session, in person, online or hybrid.
- Closing joint minute recording the outcome.
- Mediator's report prepared, signed and filed with the joint minute on Court Online.
Step 1: the initial Rule 41A notice
The process is initiated by a notice in terms of Rule 41A. A plaintiff or applicant delivers it together with the summons or notice of motion, indicating whether the dispute is referred to mediation and giving concise reasons. The defendant or respondent delivers a corresponding notice no later than the delivery of the plea or opposing affidavit.
Parties who had not yet delivered a notice when the Directive took effect must ensure their notice complies with Rule 41A and contains the particulars set out in the Protocol to the extent applicable.
The notice is a without-prejudice document and is not filed with the registrar. It is not a pleading, and it should not be drafted as though a trial judge will read it. The document detail is in Rule 41A mediation documents explained.
Step 2: the amplified Rule 41A notice
This is the step that did not exist before the Protocol, and it is where most practitioners lose their footing.
Where, as a result of the Directive and the Protocol, the parties stand to lose their trial date, or a trial date is yet to be applied for or allocated, the parties are required to file a subsequent amplified Rule 41A notice. That requirement applies notwithstanding the prior delivery of ordinary Rule 41A notices.
It is best understood as a mediation-readiness document rather than a first notice. In most matters it is prepared after pleadings have closed or as the matter moves toward trial enrolment, because the Protocol requires it to address issues that are often not known when summons is issued. The notice must stipulate at least:
- the party's preference for how the mediation is to be administered
- the name and relevant details of one or more proposed mediators
- the facts the party considers common cause, and those it considers in dispute
- which disputed facts might reasonably be resolved by admissions
- whether expert evidence is reasonably anticipated, what is already available, and the party's position on the appointment of a single expert
- which procedural aspects and timelines can potentially be agreed
- the period within which the other party should respond, if not the default period in the Directive
- any other issue of material relevance to a mediation engagement
A notice which simply rejects mediation without cogent, fact-specific reasons may constitute an irregular notice. An aggrieved party may proceed under Rule 30A and may invoke the delinquent-party provisions of the Protocol.
The courts have held that a refusal must be properly motivated with case-specific reasons, and that prior failed settlement attempts and general pessimism about prospects are not sufficient on their own.
Step 3: the response period
Once the first party delivers an amplified notice, the other parties are required to respond and deliver their own amplified notice within the period stipulated in the initiating party's notice.
Following the amendment of 27 October 2025, the time period to respond stipulated in an amplified Rule 41A notice may be no less than 15 court days.
Two points practitioners get wrong. It is a floor set by the initiating party rather than a fixed statutory period, and it is expressed in court days, not calendar days.
In addition to the particulars required of the initiating notice, the responding amplified notice must indicate whether the party accepts or rejects the mediators proposed, with valid reasons for any rejection.
Step 4: agreeing a mediator
Under Rule 41A the parties are free to select their own mediator, and in practice a recognisable pattern has developed. The plaintiff proposes up to three names for the defendant to consider. If the defendant is not comfortable with those, the defendant may propose up to two additional names.
Under the Protocol, mediators must be qualified graduate professionals who have completed mediator training affiliated with a South African university in line with internationally accepted accreditation requirements, or who are otherwise accredited through a recognised standards body, or who have been recognised as duly trained under a Recognised Mediation Organisation policy on recognition of prior learning.
Accreditation speaks to the mediator's training, competence and accountability, and the field in which they practise. NABFAM sets the standards for family and divorce mediation, and DiSAC for civil mediation other than family, and for commercial mediation. Neither body sits above the other.
RMO status is a Gauteng court-annexed category governing which organisations may supply mediators for matters under this Protocol. The organisations currently recognised are listed in Annexure A, which is updated as further applications are approved.
Where the parties cannot agree on how the mediation is to be administered, the Protocol provides a route for that too. Practical guidance on selecting a mediator is in what happens before the first Rule 41A mediation session.
Step 5: the umpire route
If the parties still cannot reach consensus on a mediator, the matter is referred to the umpire nominated under the Protocol for an appointment to be made.
That provision does quiet but important work. It removes the tactical value of simply refusing every name the other side proposes, because the consequence of deadlock is not delay but an appointment the refusing party did not choose. Where a party has a genuine objection to a proposed mediator, the objection should be reasoned and recorded in the responding amplified notice.
Mid-article
Stuck on a step, or working to a Protocol deadline?
Step 6: appointment documents and onboarding
Once the mediator is identified, three things happen in parallel, and all three must be complete before the session is confirmed.
The agreement to mediate is signed by the parties and the mediator. Rule 41A(4)(b) requires it to be entered into before the mediation begins, and it governs confidentiality, caucus rules, cancellation, termination, reporting and the fee split.
The first joint minute records the parties' election to refer the dispute, as required by Rule 41A(4)(a), together with the mediator's appointment and accreditation and the organisation to which the matter will be reported.
Onboarding and compliance documents are completed with the administering practice, which at MV Inc means a Client Information Form and FICA Declaration from each party, with identity document and proof of residence, plus confirmation of the fee split and the amplified notices.
Late documents. As a matter of internal protocol, MV Inc requires the agreement to mediate and the first joint minute signed and returned no fewer than 10 (ten) days before the first joint session. That is a practice standard rather than a statutory deadline, and it exists so the pre-mediation work can be done properly.
Unpaid deposits. The deposit is payable before the session is confirmed. An unpaid deposit is among the most common reasons a scheduled session does not proceed, and in a matter where a trial date depends on a report, a postponement is not merely an administrative irritation.
Signature of the Rule 41A(4)(a) minute also triggers the suspension of time periods prescribed by the Rules. That suspension runs until the mediation concludes and may not exceed 30 days unless the parties agree otherwise or the court authorises an extension. It is not a suspension of prescription. Where a party considers the suspension is being abused, Rule 41A(4)(c) and (5)(b) provide for approaching the court to have it uplifted.
Step 7: the session
A Protocol mediation is typically a half day or full day, conducted in person, online or as a hybrid, as agreed between the mediator and the parties. The Protocol requires separate breakout rooms, whether physical or virtual, so that caucusing can occur with genuine privacy.
The mediator opens in joint session, confirms documentation and attendance, and runs through the structure of the day. The parties usually make opening statements, after which the mediator identifies the issues and generally moves between private sessions, returning the parties to joint session for interim agreements or where further information is needed.
Attendance carries its own requirement. Each party must be represented by someone with authority to negotiate, to decide and to conclude. What is said in the session is protected, subject to the carve-outs discussed in confidentiality in Rule 41A mediation, but how a party participates is reportable.
Step 8: the closing minute and the mediator's report
On conclusion, the parties prepare a joint minute recording the outcome, and the mediator prepares and signs a report certifying the outcome and the parties' participation.
The report must substantively comply with the Protocol and be completed within 10 court days of the mediation. It is filed electronically on Court Online together with the joint minute, and under the Protocol the agreement to mediate is filed with them.
The closing minute earns its place where the mediation narrows the issues without resolving everything, because it records what no longer requires a hearing. That is a court-facing document which shortens the trial. Precision matters: what has been resolved, what remains for determination, and how costs on the settled portion are dealt with should be clear on the face of it.
“Work backwards from the trial date. A report delivered on the tenth court day, seven court days before trial, leaves no margin at all.”
The timetable in one place
| Step | Period |
|---|---|
| Mediations initiated by an initial Rule 41A notice | The ordinary time periods provided for in Rule 41A apply. Early initiation is encouraged. |
| Response to an amplified Rule 41A notice | Stipulated by the initiating party, and may be no less than 15 court days. |
| Suspension of time periods under the Rules | From signature of the Rule 41A(4)(a) minute until conclusion, not exceeding 30 days unless agreed or extended by the court. |
| MV Inc document standard | Agreement to mediate and first joint minute signed and returned at least 10 days before the session. Practice standard, not statutory. |
| Mediator's report | Prepared and signed within 10 court days of the mediation, filed on Court Online with the joint minute. |
| Where a trial date is already allocated | Report available to the court with a practice note 7 court days before trial, failing which the matter is liable to be struck from the roll. |
| Fresh set-down applications | Report available to the court 30 court days before the trial date. |
| From 1 January 2027 | No trial date allocated unless the application is accompanied by the mediator's report, or a Judicial Case Manager's report in commercial court matters. |
The costs dimension, and what goes wrong when these periods are missed, is dealt with in mediation in the Gauteng High Court.
Where a matter genuinely cannot be mediated
The amendments of 27 October 2025 inserted provision for matters not capable of being mediated by virtue of the nature of the dispute. Those are dealt with on production of a joint minute, or a direction from an umpire, as contemplated in paragraph 7.1A of the Protocol.
That is the route for the matter which genuinely cannot be mediated, not the matter one party would prefer to avoid. The burden of establishing it sits with the party asserting it, and the position should be recorded properly rather than asserted in a bare notice. Where urgent relief is required, where the real question is the interpretation of an instrument, or where a binding precedent is the actual objective, say so with reasons.
Frequently asked questions
What is the difference between the initial and the amplified Rule 41A notice?
The initial notice is delivered with the summons or notice of motion and records the party's early position on referral to mediation. The amplified notice is required under the Gauteng Protocol where the parties stand to lose a trial date or a date has yet to be allocated, and it is a mediation-readiness document addressing proposed mediators, common cause and disputed facts, possible admissions, expert evidence, timelines and the response period.
How long do we have to respond to an amplified notice?
The initiating party stipulates the period in its own amplified notice. Following the amendment of 27 October 2025, that period may be no less than 15 court days. It is a floor rather than a fixed period, and it is expressed in court days rather than calendar days.
What happens if the parties cannot agree on a mediator?
The matter is referred to the umpire nominated under the Protocol for an appointment. In practice the plaintiff proposes up to three names, the defendant may propose up to two more if uncomfortable with those, and deadlock goes to the umpire. A party rejecting proposed mediators should record valid reasons in the responding amplified notice.
When are time periods suspended, and does that protect the claim?
Suspension runs from signature of the Rule 41A(4)(a) joint minute until the mediation concludes, and may not exceed 30 days unless the parties agree otherwise or the court authorises an extension. 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.
When must the mediator's report be filed?
Within 10 court days of the mediation, filed electronically on Court Online together with the joint minute. Where a trial date is already allocated, the report must be made available to the court with a practice note 7 court days before trial, and for fresh set-down applications 30 court days before the date.
Can we decline to mediate under the Protocol?
A refusal must be properly motivated with cogent, case-specific reasons. A generic notice rejecting mediation may constitute an irregular notice, opening the door to a Rule 30A approach and the delinquent-party provisions. Where a matter is genuinely not capable of being mediated by virtue of the nature of the dispute, paragraph 7.1A provides for a joint minute or an umpire's direction.
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 Rule 41A 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: Rule 41A · Gauteng Protocol · Court-Annexed Mediation
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