Mandatory mediation in Gauteng: The true test for mediation

If a counterparty refuses court-annexed mediation in the Gauteng Division, a subjective belief that it will fail is not enough to excuse them. The Gauteng High Court confirmed in Brondani v Brondani that the bar for avoiding mediation is high, and that arguments based on futility, hostility, or cost will not succeed. If you are litigating in Gauteng, mediation is effectively compulsory unless truly exceptional circumstances exist.

The background

A plaintiff sued a defendant for assault damages. The defendant counterclaimed, alleging the plaintiff was the aggressor.

When the plaintiff sought to initiate court-annexed mediation under Uniform Rule 41A, the defendant refused, arguing it would be a waste of time.

The defendant’s stated reasons were that:

• prior settlement attempts had failed
• the parties were too hostile for mediation to work
• a mediator cannot resolve factual disputes about who assaulted whom
• mediation would prolong already drawn-out litigation
• he was unwilling to pay for a mediator

The plaintiff applied to court to compel compliance. The Court agreed with the plaintiff on every substantive point.

What the court decided

The Court confirmed that a party may only refuse mediation if they provide convincing, fact-specific reasons tied to the particular circumstances of their matter. Generic objections will not do.

The Court rejected each of the defendant’s grounds:

• “Mediation will fail” – a party’s subjective belief that mediation is futile carries no weight.
• “We are too hostile” – acrimony is a feature of most litigation. It is not a reason to bypass mediation.
• “We have already tried to settle” – failed negotiations are not the same as failed mediation. The processes are different.
• “A mediator cannot decide who is at fault” – mediation is not adjudication. Its purpose is to facilitate communication, narrow the issues in dispute, and identify possible solutions. A mediator does not need to determine liability.
• “It will cost too much” – cost alone is not an exceptional circumstance.

The Court ordered the defendant to cooperate in appointing a mediator, file an amplified Rule 41A notice, and engage with the process in accordance with the Mediation Protocol. On costs, the Court found the defendant had acted in good faith while navigating a newly implemented regime and ordered each party to bear their own costs.

What you need to do

If you are the party seeking mediation:

• File your Rule 41A notice promptly and correctly.
• If your counterparty refuses or drags their feet, document this and apply to court for relief under the Mediation Protocol. Brondani gives you a strong platform to do so.

If you are the party being asked to mediate:

• Do not refuse mediation without proper legal advice. A blanket refusal, or one based on the grounds rejected in Brondani, will not hold.
• If you genuinely believe exceptional circumstances exist, your Rule 41A notice must set out specific, compelling, fact-based reasons. Vague or subjective objections will be rejected.
• Engage constructively. Even in high-conflict matters, the obligation to participate in good faith applies.

For all Gauteng litigants:

• Treat compliance with the Mediation Directive and Protocol as mandatory, not optional.
• Remember that mediation serves a broader purpose than just settlement. Courts will assess whether you engaged genuinely with that purpose – not merely whether you showed up.

The practical takeaway

Brondani v Brondani removes any remaining ambiguity about the enforceability of mandatory mediation in Gauteng. Refusal carries real procedural and cost risk. Build mediation into your litigation strategy from the outset, and advise your business units accordingly when disputes are escalating toward litigation.

Contact Nikita Lalla, Ricardo Pillay, or Mbalenhle Simelane to mitigate risks, unlock opportunities, and successfully deliver infrastructure projects.