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Mandatory mediation is reshaping South Africa’s justice system as court backlogs drive demand for faster dispute resolution, creating new opportunities for trained mediators.As civil trial dates in Gauteng, which grapples with most of South Africa’s commercial disputes, stretch to as far as 2031, mandatory mediation has emerged as a key tool to ease pressure on South Africa’s courts.A high court directive requiring parties in civil matters to attempt mediation before applying for a trial date was introduced in April 2025, after deputy chief justice Dunstan Mlambo said more than 85% of trial matters ultimately settle without judicial intervention.“When court dates are years away, many people understandably question whether the justice system is able to deliver timely access to justice,” said STADIO Higher Education head of law Anri Lock Ferguson.“The infringement or dispute remains hanging, potentially costing parties thousands or even millions of rands,” she said, adding that the system faced “systemic” challenges, with “justice’s wheel turning too slowly” in South Africa.Lock Ferguson said mandatory mediation could significantly change how civil disputes are resolved, with commercial, contractual and family disputes among those that could often be settled before reaching trial.Rather than replacing lawyers, she said mediation formalises settlement negotiations by introducing an independent third party to help disputing parties reach agreement.‘An extra step’While public acceptance of mediation is growing, Lock Ferguson said some legal practitioners remain sceptical, viewing mandatory mediation as “an extra step” that can add tens of thousands of rands in legal costs if disputes still proceed to trial.She argued, however, that resolving disputes before trial could ultimately save individuals and businesses both time and money.“In most instances, disputes can be resolved through mediation or other forms of alternative dispute resolution, thereby circumventing the need to set foot in a court. It’s more expedient and generally far more affordable,” she said.Lock Ferguson said greater regulation of the mediation field would be needed to build confidence among legal practitioners and the public.“If the mediation industry is better regulated and the training is all of a certain standard, then it might be a little more well received in legal practice and by the broader public,” she said.To address demand for qualified mediators, STADIO’s School of Law has partnered with the Social Justice Association to offer practical mediation training. The five-day programme combines theoretical foundations with role-play exercises and simulated mediations, and is open to participants without a law qualification.The Social Justice Association serves on bodies including the Association of Dispute Resolution Practitioners of South Africa, the National Accreditation Board for Family Mediators and the Dispute Settlement Accreditation Council.Lock Ferguson said practical experience was essential in preparing mediators to deal with complex disputes. “You need the practical simulations and role plays to know how to resolve an issue,” she said.Mediation offered opportunities beyond the legal sector, with social workers, educators, human resource practitioners, business professionals and others able to enter the field.However, building a mediation practice required more than completing a course, with practitioners often relying on professional networks, referrals and accreditation bodies to access matters.The most important qualities for mediators, Lock Ferguson said, were the ability to listen, remain objective and help parties reach consensus rather than impose solutions. “You are not there to talk and sort things out on behalf of the parties. You are there as a facilitator to help them reach consensus.”Laurie Greyvenstein, chair of the Social Justice Association of ADR Practitioners, said demand for mediation had increased as legal costs, court delays and pressure on judicial resources pushed more people to consider alternatives to litigation.“Rising legal costs, lengthy court delays and increasing pressure on judicial resources have encouraged both legal practitioners and members of the public to consider mediation as a first option rather than a last resort,” she said.Greyvenstein said the shift reflected a growing recognition of the different roles played by courts and mediation. “People are beginning to realise that while courts determine rights, mediation helps people find solutions.”Business Times
