No Easy Escape From Gauteng’s Mandatory Mediation Regime

In the judgment of Brondani v Brondani (2021-52977) [2025] ZAGPJHC 1157 Adams J confirmed that only exceptional circumstances will excuse parties from participating in court-annexed mediation governed by the Mandatory Mediation Directives of the Gauteng Division (Directive), read with its Mediation Protocol (Protocol). The judgment serves as a stark warning to litigants in the Gauteng Division: mandatory mediation cannot be avoided simply because parties believe themselves to be too hostile towards each other or that the process will be futile. This ruling reinforces the compulsory nature of the mediation regime to all civil actions instituted in the Gauteng High Court divisions.

At a glance

• In the judgment of Brondani v Brondani (2021-52977) [2025] ZAGPJHC 1157 Adams J confirmed that only exceptional circumstances will excuse parties from participating in court-annexed mediation.
• The court ordered the defendant to co-operate in the appointment of a mediator.
• The judgment serves as a stark warning to litigants in the Gauteng Division: mandatory mediation cannot be avoided simply because parties believe themselves to be too hostile towards each other or that the process will be futile.

The introduction of the Directive and Protocol generally means that a civil matter will not qualify for the allocation of a trial hearing date until parties have completed a mediation process.

Before Adams J was an interlocutory application in terms of which Mr R Brondani (the plaintiff) sought an order to compel Mr M Brondani (the defendant) to co-operate in the appointment of a mediator in terms of the Protocol.

In the main action, the plaintiff claimed damages of just over R1 million arising from an alleged assault by the defendant in December 2019. The defendant in turn launched a counterclaim against the plaintiff claiming just over R2,5 million, alleging that it was in fact the plaintiff who assaulted him. The defendant opposed the interlocutory application, submitting that the dispute was incapable of resolution through mediation, as multiple attempts at settling the matter had already failed. The defendant argued that employing a mediator would only result in further unnecessary and wasted costs, and the disputed facts and a finding of fault on the part of either party fell well outside the scope of a mediator’s mandate.

Procedural compliance differs from valid reasoning

A further issue before the court was whether the defendant’s amplified Rule 41A notice constituted an “irregular notice” as envisaged by paragraph 4.7 of the Protocol. The Protocol requires a party opposing referral to mediation to deliver an amplified Rule 41A notice setting out cogent reasons specifically and directly applicable to the unique facts of the matter, motivating why the matter cannot be resolved, either in full or partially, through mediation. The court found that the defendant’s notice complied with these requirements: it set out cogent reasons specifically applicable to the unique facts, namely the matter’s long and tedious history with many fruitless attempts to settle. The court, however, drew an important distinction – procedural compliance with the notice requirements does not determine whether the grounds advanced are valid to excuse mediation. That remains a separate question to be decided by an umpire or special interlocutory court.

Turning to the question of whether the grounds advanced by the defendant are sufficient, the court found that the defendant’s subjective belief that mediation would be futile was not considered a valid ground to avoid mediation in terms of the Protocol. Adams J emphasised that parties should be excused from subjecting their disputes to mediation in terms of the Protocol only in “exceptional circumstances”. Extreme acrimony between the parties and the fact that one of the parties to the litigation believes subjectively that mediation would be a waste of time do not constitute such exceptional circumstances. To hold otherwise would defeat the purpose of the mediation processes as envisaged by the Directive and the Protocol.

The purpose of mediation

In his obiter remarks, Adams J reiterated the purpose and aim of court-annexed mediation, as expressly provided for in paragraph 2 of the Protocol: to provide a structured, standardised yet flexible framework for implementing court-annexed mediation in the Gauteng Division of the High Court. Importantly, the Protocol aims to promote the use of mediation as an alternative dispute resolution mechanism to alleviate congestion on the court rolls, as well as to enhance access to justice by providing an efficient, cost-effective and less adversarial method of resolving disputes. The court emphasised that the Protocol also aims to foster a culture of co-operation and mutual respect among litigants.

Adams J further reiterated that a mediator’s mandate should not be to adjudicate the matter and find fault one way or another. The role of a mediator is to be an impartial, neutral third party who facilitates the parties to identify solutions, ask questions, reframe issues and understand one another’s respective positions, and assist them to craft their own unique solution to the dispute.

The court therefore ordered the defendant to co-operate in the appointment of a mediator and in the furtherance of the mediation process by delivering an amplified Rule 41A notice in terms of paragraph 4.6 of the Protocol, stipulating his preference for the administration of the mediation process and by choosing one or more of the proposed mediators. However, despite the general rule that costs be awarded to the successful party, the court ordered each party to pay their own costs for the interlocutory application, as it was accepted that the defendant was acting bona fide. Adams J rightfully acknowledged that litigants are still feeling their way through these new rules and procedures following the recent introduction of the Directive and Protocol.

This case sends a clear message that the Gauteng Division’s mandatory mediation regime cannot be sidestepped simply because litigants doubt its utility or harbour ill-will towards their opponent or the mediation process. Practitioners should take note: an unco-operative party can be compelled to participate in mediation. As the court acknowledged, litigants are still adapting to this new regime – but adaptation, not avoidance, is the order of the day.

Complicating the application of the Protocol

A further observation to be made to those litigants who are seeking to dismiss mediation due to the increased costs is that attempting to do so is only going to lead to having to defend an application to compel in special interlocutory court. This route in and of itself is likely to be far more expensive than to explore the mediation process before being forced to do so by the special interlocutory courts.

Also, unfortunately, the decision does also complicate the application of the Protocol. While finding that the reasons provided for opting out of mediation were “cogent” – the standard set out in the Protocol – the court found that the circumstances weren’t exceptional enough to warrant opting out of mediation. This in itself raises a whole set of new questions. For example, does this mean there is a new standard to be applied when providing reasons for wanting to opt out of mediation? If the reasons are “cogent” and there is no irregular step, then does that mean that a non-compliant litigant can still be viewed as a “delinquent litigant”? While we agree with the conclusion reached and understand that the court had its reasons for ruling in the manner it did, the complication may have been avoided if it was found that attempting to avoid mediation purely because the parties are hostile or previous settlement negotiations had failed does not qualify as cogent reasons under the Protocol.