The long-awaited moment has arrived: mediation is now mandatory in the High Courts of Gauteng for all civil matters. It’s a bold and overdue move in our justice system, and a clear signal that the rest of the country will soon follow. The question on everyone's lips is: Are we prepared?
For decades, many litigation lawyers have resisted mediation—despite repeated signals from the judiciary about the unsustainable burden on the courts, and despite consistent recommendations from the South African Law Reform Commission to evolve our dispute resolution processes. But resistance is futile now. Mediation has become the law in Gauteng, and the profession must adapt quickly.
Like many of my peers, I began my legal career entrenched in the adversarial system. But almost two decades ago, I realised that the court process—costly, time-consuming, stressful, and often destructive—was not serving our communities well. It became clear to me that we needed a different way.
In those early years of ADR, the landscape was uncertain. Many litigators clung to what they knew, often to the detriment of their clients. The entrenched mindset of “Don’t talk to me, talk to my lawyer” kept parties at war and fuelled adversarial thinking. I still remember a cartoon from a magistrate’s office wall showing two litigants tugging at a cow—one by the horns, one by the tail—while their lawyers sat on either side, happily milking it. That image is as relevant today as it was then.
Fifteen years ago, the Brownlee judgment made headlines when a punitive costs order was issued against attorneys who failed to advise their clients about mediation. Yet, it’s taken this long for mandatory mediation to become a reality. Judge President Dunstan Mlambo’s Directive is a turning point: he notes that 85% of civil cases settle on the trial date—after years of costly litigation. In contrast, global and local experience shows that up to 90% of mediated cases settle, often in just one or two sessions. My personal statistics support this—80% settle in the first session alone.
While litigation will always have its place for certain matters, it must no longer be the default.
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