This blog is co-authored by Yuveshen Naidoo, candidate attorney.

In November 2025, the Gauteng Division of the High Court confirmed that parties in civil litigation must participate in mediation before their trial can proceed. The court made it clear that mediation is not optional, and personal objections or a breakdown in relations between parties are not valid reasons to avoid the process.

The case involved damages claim following an alleged assault. The claimant tried to initiate mediation, as required by the court’s Mediation Directive and Protocol. The other party refused, arguing that mediation would be pointless and costly, given previous failed settlement attempts and the poor relationship between the parties. The claimant then asked the court to compel participation in mediation.

The court rejected the argument that mediation would be futile simply because the parties had not settled before or because their relationship was acrimonious. The judge held that subjective beliefs about the prospects of mediation are not enough to avoid the process. The court ordered the parties to cooperate in appointing a mediator and to participate in mediation as required by the rules.

This decision means that, in the Gauteng High Court, mediation is a step that cannot be skipped unless there are exceptional, case-specific reasons. The court’s approach is to encourage communication, help parties find solutions, and reduce the backlog of cases waiting for trial. Legal advisers and clients should be aware that refusing to participate in mediation without a valid, specific reason will not be accepted by the court.

A recent amendment to the Mediation Protocol allows parties to propose that a matter cannot be mediated. When parties do not agree to mediate, the amended Protocol requires them to record their reasons in a joint minute. If the objection is based on a specific legal issue, they must set out a ‘stated case’ summarizing the legal question that prevents mediation. An Umpire, appointed under the Protocol, will then review the joint minute and stated case (if any) and make the final decision on whether the matter must proceed to mediation or not. Where parties agree to mediate, they simply appoint a mediator and proceed with the process as required by the Protocol. The message is clear that mediation is now a crucial part of civil litigation in Gauteng. Parties must engage with the process, regardless of their personal views about its prospects. This is intended to save time and costs and to ensure that the justice system works efficiently for everyone.

Read the full judgment: Brondani v Brondani (2021/52977) [2025] ZAGPJHC 1157 (17 November 2025)