The Mediation Process in South Africa, Step by Step

The sequence below follows the official court-based process and the general outline private mediators use. Details vary by mediator and by dispute.

1. Decide whether mediation fits your dispute

Ask yourself three things. Is the other side willing to talk? Is there something to negotiate, such as money, time with children, a repair or an apology? And can you speak freely without fear? If the answers are yes, mediation is worth trying. If a deadline is running, for example a prescription period on a claim, speak to an attorney first, so that mediation does not cost you your right to sue.

2. Start the process

The Department of Justice says you can start by visiting a court mediation clerk, explaining your problem and completing an application for referral, either before litigation starts (pre-litigation) or after it has begun (post-litigation). The clerk helps you complete the form. Mediation remains voluntary throughout.

The other route is private. You and the other party agree on a mediator and sign a mediation agreement. Private mediators come from law, social work, psychology and other backgrounds, so ask about training and accreditation before you agree.

3. Choose a mediator

In the court-based scheme, parties choose a mediator from a panel of accredited professionals trained and appointed by the Minister of Justice and Correctional Services, with help from the mediation clerk if needed. In private mediation, choose someone both sides accept as neutral. If you need an attorney to advise you alongside the mediation, you can search for one by area and location in the Justibly directory of LPC-registered attorneys.

4. Prepare

Before the first session, gather what the discussion will need:

The documents that matter: contracts, correspondence, invoices, title deeds, payslips, medical reports.
A short written summary of what happened and what you want.
A realistic range of acceptable outcomes, including the minimum you can live with.
The authority to settle. If you are acting for a company or a trust, bring someone who can sign.

5. The mediation session

A typical session runs like this. The mediator explains the ground rules and confirms confidentiality. Each side gives an uninterrupted account. The mediator identifies the issues in dispute and the interests behind them. Then the options stage begins: proposals, trade-offs and counter-proposals. According to a mediation guide published by a South African law firm, the process is guided by the mediator but determined by the parties, and it may include private caucuses, where the mediator speaks to each side separately.

Caucuses are useful when emotions run high or when someone will not say a number in front of the other party. What you tell the mediator privately is not passed on unless you allow it.

6. Reach agreement and put it in writing

The same guide notes that discussions are confidential and that a settlement is non-binding until it is reduced to writing and signed. Do not leave the room on a handshake. Have the terms written out, with dates, amounts and who does what, and signed by everyone. The Department of Justice states that, if the parties agree, the mediator helps draft the agreement, which is enforceable as a contract and may be made a court order.

Have an attorney read the draft before you sign, especially where property, a business or children's arrangements are involved.

7. If there is no agreement

The department's guidance is that parties who do not settle may resort to litigation or adjudication. Mediation does not remove your day in court. Because discussions are confidential, what was said in mediation generally cannot be used against you later, but ask your mediator how the confidentiality clause in your agreement is worded.

When can you mediate?

Mediation can take place before a case is issued, while it is running, or on the eve of trial. One law firm's overview of South African practice says that under the court rules mediation should take place before the counterparty files a plea, but that parties can mediate at any stage before judgment. The earlier you start, the less you will have spent on legal costs and the less entrenched each side tends to be.

Court-annexed mediation and Rule 41A

Two things are often confused here, so it helps to separate them.

The court-annexed mediation project. This is the Department of Justice's scheme under the Mediation Rules, in which court mediation clerks refer parties to accredited mediators at magistrates' courts. The department's mediation page states that the project is on hold indefinitely and that no mediation services are currently being rendered under it. Before you travel to a court, phone the clerk's office and confirm what is available. Private mediation and the statutory family routes described below are unaffected.

Rule 41A of the Uniform Rules of Court. This High Court rule came into effect on 9 March 2020. A Johannesburg High Court judgment explains that its objective is to make it mandatory for litigating parties to consider mediation at the start of litigation. In practice, the party starting a case serves a notice stating whether it agrees to mediation or opposes it, with reasons, and the other side responds with its own notice.

Court-annexed mediation and Rule 41A

Can a court force you to mediate?

In the same judgment, a party asked the court for an order compelling the other side into mediation under Rule 41A. The court held that the rule makes no provision to compel any party to submit to mediation. So an application to compel mediation under Rule 41A is not a reliable tool. The rule requires you to consider mediation and state your position. It does not require you to mediate.

That said, courts can take a party's attitude into account. If you refuse mediation with no good reason, expect questions. Courts and the legal profession are increasingly alert to costs wasted on disputes that could have been settled. If you are served with a Rule 41A notice, treat it seriously, get advice on your answer and give real reasons.

This is a fast-moving area, and rules and practice directives can change. Confirm the current position with an attorney before you rely on any of it for a live case.

Family mediation in South Africa

Family disputes are where most people meet mediation first. There are three main routes.

Maintenance officers

In a maintenance dispute, the Department of Justice says a maintenance officer can conduct mediation between the parties to reach a settlement, which, if agreed, can be made an order of the court. The same page states that payment of maintenance is compulsory and that a court may order payment by EFT, salary deduction or direct deposit. For the court side of this, see our guide to the maintenance court in South Africa, and for the different forms of support between spouses, see spousal maintenance in South Africa.

The Office of the Family Advocate

The Family Advocate helps parents mediate disputes about parental responsibilities and rights, such as care, contact and guardianship, and helps draft parenting plans. The office also interviews parents and children, which is designed to shield children from the harsh environment of a court. Our article on the Children's Act and free Family Advocate help explains how to approach the office, and our guide to parental rights in South Africa covers what the law gives each parent.

Private family and divorce mediators

The Mediation Society of South Africa notes that where underage children are involved, family mediation may include Voice of the Child sessions, co-parenting training and a parenting plan. In a divorce, a mediator typically helps spouses work through care of the children, contact, maintenance and the division of the joint estate, and the outcome is recorded in a settlement agreement that is then made an order of court in the divorce. Our page on who gets custody of a child in a divorce sets out the legal standard of the child's best interests that any agreement must respect, and what family law covers gives you the wider picture.

Whatever the route, a court will not simply rubber-stamp terms that harm a child. Agreements about children are always tested against the child's best interests.

What does mediation cost and how long does it take?

No official tariff applies to private mediation, so fees depend on the mediator, the complexity of the dispute and whether the matter is a one-session job or needs several meetings. Ask any mediator three questions before you agree: what is your hourly or daily rate, how is it split between the parties, and what do you charge for preparation and drafting the settlement? Get the answers in writing.

As for time, the Department of Justice lists speed and lower cost as advantages over litigation, and many straightforward disputes can be settled in one or two sessions. Litigation through the courts can run for years. Treat any specific figure you see online with caution unless it comes from the mediator you are dealing with.

How to prepare so mediation works

Separate positions from interests. "I want R50 000" is a position. "I need to cover the repair and not be out of pocket" is an interest, and interests leave more room to trade.
Know your alternative. Ask your attorney what a court is likely to give you, and what it will cost to get there. That tells you whether an offer is good.
Keep proposals specific. Dates, amounts, payment methods and consequences of default.
Stay on the issue. Mediators are not judges and will not decide who was more to blame.
Do not sign under pressure. You can ask for a break or to take the draft away for advice.

If your dispute is small and money-based, a court-based alternative may be quicker: see how the small claims court works in South Africa. For an overview of which court deals with what, our page on courts in South Africa is a good start. And if you cannot afford an attorney yet, free legal advice options in South Africa can help you get oriented before mediation.

Perspective

Most people come to us once a dispute has already turned into a standoff. What we see again and again is that the first conversation with a properly registered attorney changes how people approach mediation. They understand their rights, they know what a fair outcome looks like, and they stop negotiating from fear.

That is why we built Justibly around verified Legal Practice Council data. Our listings are not ranked by who pays, and answers on our free Q&A forum come only from LPC-registered lawyers. If you are walking into a mediation about a divorce, a debt, a property matter or a claim, you deserve advice from someone whose registration status you can trust.

Our advice is simple: try mediation early, get your documents in order, and have an attorney review any agreement before you sign it. A settlement that is properly drafted can be enforced. One that is vague just starts the next dispute.

Nkosi

Find an attorney to prepare you for mediation

An attorney can advise on whether to mediate, prepare your position, attend with you and check the final settlement. Justibly lists LPC-registered attorneys by practice area and location in all nine provinces, and you can also ask a legal question on our free Q&A forum. Attorneys who want to be found by people in your position can upgrade their profiles, with plans starting at R499 per month for Professional and R999 per month for Premium on our pricing page.

Justibly

Ready to start? Search the Justibly directory for a family, civil or commercial attorney near you.

FAQ

Is mediation compulsory in South Africa?

No. Mediation under the Department of Justice's scheme is voluntary. Rule 41A requires litigants in the High Court to consider mediation and state their position in a notice, but a High Court has held that the rule does not allow a court to compel a party into mediation.

Is mediation confidential?

Yes, in general. Discussions in mediation are confidential, and a settlement is not binding until it is written down and signed. Ask your mediator to explain the confidentiality terms in the mediation agreement before the first session.

What happens if the other party breaks the mediation agreement?

A signed settlement is enforceable as a contract, and it can be made an order of court. If the other party defaults, you can take enforcement steps through the court, so ask your attorney to make sure the agreement is drafted with clear terms and dates.

Can I mediate a maintenance or child contact dispute for free?

There are state routes. A maintenance officer can mediate maintenance disputes, and the Office of the Family Advocate helps parents with disputes over care and contact. Contact the nearest office to confirm how to apply and what is currently available.

Do I need an attorney for mediation?

You are not required to have one. Many people still find it valuable to get advice before the session and to have the written settlement checked, because the agreement can become a binding court order.

The Mediation Process in South Africa, Step by Step

TL;DR

Table of Contents

What mediation is and how it differs from going to court