Mandatory Mediation: Panacea, Placebo Or Problem?

In November, Herbert Smith Freehills Kramers' Johannesburg office celebrated its 10-year anniversary in South Africa. As part of the celebrations, the office's Dispute Resolution team hosted a seminar titled “Mandatory Mediation: Panacea, Placebo or Problem?”. The discussion focused on South Africa's recently introduced Mandatory Mediation Directive in the Gauteng Divisions of the High Court ("Directive"), a development that has sparked considerable debate within the country's legal community. Is this directive the long-awaited solution to litigation backlogs, or simply another procedural hurdle? The seminar provided a platform to explore these questions in depth. Alongside the Deputy Judge President Roland Sutherland of the Gauteng Division of the High Court, the panel featured partner and the head of Disputes of Herbert Smith Freehills Kramer in Africa, Jonathan Ripley-Evans as well as the managing partner of Disputes in UK and EMEA, Paul Lewis ("Lewis") and Head of contentious Insurance and Professional Risks and Alternative Dispute Resolution, Alex Oddy ("Oddy") from Herbert Smith Freehills Kramer's London office.

Why Mandatory Mediation, and Why Now?

The evening opened with the DJP who provided crucial context on the rationale behind introducing mandatory mediation and the factors that ultimately led to its implementation. The DJP emphasised that mediation is not a "cure-all" as it does not resolve disputes by itself but is rather a remedy on the path toward resolution. The judiciary's interest in this directive stems from systemic challenges: congested court rolls, limited judicial resources, and the growing need for alternative dispute resolution mechanisms that can deliver timely and cost-effective outcomes while safeguarding access to justice.

The DJP explained that the trigger for this directive was not mediation as a concept, but the inability to provide litigation services at the scale needed by the South African public. Courts are stretched thin, and the backlog of cases continues to grow with access to Justice for some being six or seven years away. Mandatory mediation is therefore positioned as a structural intervention to filter disputes early, narrow issues, and encourage settlement before matters escalate to trial. The sentiment expressed by the DJP was that mediation is not the destination, but an essential step along the journey toward resolution and access to justice.

What Has Changed?

Several factors underpin the timing of this directive. First, there is a growing recognition that mediation plays a critical role in modern dispute resolution. It offers flexibility, preserves relationships, and often achieves outcomes that litigation cannot. Second, resource constraints within the judiciary have reached a tipping point. The directive seeks to alleviate these pressures by diverting suitable cases away from the courts. Third, the directive aims to create a market for mediation, embedding it into the litigation process and fostering a professional ecosystem of accredited mediators. Finally, mandatory mediation has the potential to improve access to justice by reducing delays and costs associated with protracted litigation.

The Directive in Practice

The directive introduces a structured process that integrates mediation into early case management stages. Judges will play an active role monitoring compliance, irrespective of their own experience in mediation. However, one of the most critical elements is accreditation. If parties appoint a mediator who is not accredited under the directive, the mediation will not be recognised by a subsequent court. In such cases, parties will need to repeat the process before an accredited mediator, resulting in additional time and cost. This requirement underscores the importance of building a robust mediation register and ensuring transparency around mediator qualifications. As noted during the seminar, the directive does not allow exceptions, experience alone is insufficient without formal accreditation.

Opportunities and Challenges of the Directive

Drawing on their extensive global experience in mediation, Lewis and Oddy praised South Africa's proactive steps in implementing the Mandatory Mediation Directive which is similar to the UK position, where mandatory mediation is a court-directed process aimed at resolving disputes efficiently and reducing litigation costs before trial. They highlighted that while each jurisdiction develops its own unique mediation culture, this directive represents a positive and necessary step toward building South Africa's own culture of mediation.

Lewis and Oddy noted that this evolution will take time and may involve some growing pains, but the benefits are clear. Mandatory mediation encourages parties to engage constructively, focusing on interests rather than entrenched positions. This cultural shift could lead to more sustainable outcomes and reduce adversarial dynamics. By resolving disputes earlier, mediation can significantly lower legal costs and ease pressure on the courts. They also emphasized that the directive creates opportunities for lawyers and mediators to broaden their skill sets and adapt to changing client expectations.

At the same time, they acknowledged that challenges remain. Speaking from their jurisdiction, implementation will not be straightforward, particularly in complex commercial disputes where parties may resist mediation. Building a pool of accredited mediators will take time, and shortages could undermine the directive's effectiveness. There are also perception issues to overcome, as some stakeholders still view mandatory mediation as an additional procedural step rather than a genuine opportunity for resolution. Addressing these concerns will require education, engagement, and a clear demonstration of mediation's value.

Looking Ahead

So, is mandatory mediation the solution to South Africa's litigation challenges? The answer, as the seminar revealed, is complex. Mandatory mediation is neither a silver bullet nor a mere placebo, it is a strategic intervention designed to address a route to access justice, alleviate systemic inefficiencies and promote a more collaborative approach to dispute resolution. Its success will hinge on several factors: fostering a positive mediation environment, ensuring that mediators are properly trained and accredited, engaging stakeholders to embrace the directive as an opportunity rather than a burden, and continuously evaluating its impact over time.

Ultimately, mandatory mediation represents a real opportunity to reshape South Africa's dispute resolution landscape. By filtering issues early and fostering dialogue, it can reduce litigation backlogs, lower costs, and create a more constructive legal culture, one that prioritises resolution over confrontation. While challenges remain, the directive signals a shift toward a more efficient and accessible system of justice. Whether it proves to be a panacea or a problem will depend on how effectively it is implemented and embraced by the legal community.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.