Litigation in the High Court is slow and expensive. Trial dates can be years away, and legal costs often grow to a large share of the amount in dispute. Mediation offers a different route: a confidential, structured negotiation led by a neutral mediator, which can resolve a dispute in days rather than years.
Since 2020, Rule 41A of the Uniform Rules of Court has required parties to High Court proceedings to state at the outset whether they agree to mediation. For several years many litigants treated the rule as a formality. That has changed. In 2025 the Gauteng Division introduced a Mediation Protocol that makes mediation a practical step before civil trial dates are allocated, and the courts have shown that they expect parties to take it seriously.
This article explains what Rule 41A requires, how the Gauteng Protocol has changed the position, and how businesses should approach mediation in a civil dispute.
What Rule 41A requires
Rule 41A came into effect on 9 March 2020. It applies to new actions and applications in the High Court.
- Plaintiffs and applicants must serve a notice with the summons or notice of motion stating whether they agree to or oppose referral of the dispute to mediation.
- Defendants and respondents must serve a similar notice when they deliver their notice of intention to defend or oppose, and by no later than their plea or answering affidavit.
- The notice must give reasons for the party’s view that the dispute is or is not capable of being mediated.
Under Rule 41A(3), the parties may agree to refer a dispute to mediation at any stage before judgment. If the trial or opposed application has already started, the court’s leave is needed. A judge, a case management judge or the court may also direct the parties to consider referring the dispute to mediation.
The Magistrates’ Courts have their own court-annexed mediation rules, so mediation is available in lower-court civil matters as well.
How mediation works
Mediation is a voluntary, confidential and “without prejudice” process. The mediator does not decide the case. Their role is to help the parties identify the real issues, test their positions and find a settlement both can accept.
The parties choose the mediator, agree on the process and usually share the mediator’s fees. A typical commercial mediation involves written position statements, a joint opening session and private sessions between the mediator and each side. If the parties settle, they sign a written settlement agreement, which can be made an order of court. If they do not, the litigation continues, and what was said in the mediation cannot generally be used in court.
The Gauteng Mediation Protocol
Faced with a large backlog on its civil trial roll, the Gauteng Division of the High Court introduced a Mediation Protocol in 2025 that builds on Rule 41A. In broad terms, civil trial matters in the division now need a mediation report before trial dates are allocated or retained. A party that does not want to mediate must give cogent reasons specific to the case, and a generic objection may be treated as an irregular step.
The courts have backed this approach. In a November 2025 judgment of the Johannesburg High Court, the court refused to excuse a party from mediation even though its reasons were tailored to the facts. It held that objections such as earlier failed settlement attempts, the cost of mediation and the mediator’s lack of power to decide the case were not enough. Commentary on the first months of the Protocol reports that where parties mediate meaningfully, matters reach the trial roll faster and settlement discussions start earlier. Practitioners have also raised concerns about costs for smaller litigants and about enforcing participation by some institutional defendants.
The Protocol applies in Gauteng.
When mediation is a good fit
Mediation tends to work well where:
- the parties have an ongoing relationship, such as suppliers, franchisees, landlords and tenants, or shareholders;
- the dispute is mainly about money, and the cost of litigation is out of proportion to the amount at stake;
- confidentiality matters, for example to protect reputation or commercial information; or
- a creative solution, such as revised payment terms or a continued contract, would serve both parties better than a court order.
It may be less suitable where urgent relief is needed, where a party needs a binding legal precedent, or where there is a serious imbalance of power that the process cannot address. Mediation can still be used alongside litigation, for example after urgent interim relief has been obtained.
Practical steps for businesses in a dispute
- Consider mediation early. Decide your position before the summons is issued or received, not when a trial date is at risk.
- Complete the Rule 41A notice properly. Give genuine, case-specific reasons. A bare refusal may count against you.
- Check prescription. Make sure your claim will not prescribe while settlement talks continue. Mediation does not automatically interrupt prescription.
- Choose the right mediator. Look for someone with experience in the type of dispute, whether construction, commercial, shareholder or employment.
- Prepare as you would for court. Understand your strengths, weaknesses, likely costs and the realistic range of outcomes.
- Bring a decision-maker. Someone with authority to settle should attend the mediation.
- Put the settlement in writing. Have it reviewed and, where useful, made an order of court.
How O’Reilly Law can help
We represent businesses and individuals in commercial disputes, both in court and in mediation and arbitration. We advise on Rule 41A notices and court mediation protocols, prepare clients for mediation, negotiate on their behalf and draft enforceable settlement agreements. Where mediation is not appropriate, we pursue or defend the claim in court.
Contact us to discuss your dispute and your options.
Related reading: Prescription: when does your claim or debt expire? · High-stakes commercial litigation: a strategy guide
This article is general information and not legal advice. Correct as at November 2026.