The plaintiff sought an order compelling the defendant to participate in mediation in line with Rule 41A and the Mediation Protocol (amended as of 27 October 2025). The defendant had filed a notice refusing mediation and advanced several reasons, including cost concerns, pessimism about settlement prospects, prior failed negotiations, and a belief that issues of fault, causation and liability fall outside a mediator’s mandate.
The Court was required to determine two issues:
- Whether those reasons amounted to valid grounds for avoiding mediation.
- Whether the defendant’s notice was “irregular” for failing to provide cogent, case-specific justification, as required by paragraph 4.7 of the Protocol.
The judgment strongly reinforces the growing jurisprudence that mediation is not optional in the Gauteng Division. The Court rejected each of the defendant’s justifications:
- Subjective pessimism is irrelevant. A belief that mediation “will not work” is not a valid reason to refuse it.
- Failed settlement attempts do not exempt parties. Mediation is a structured, facilitated process distinct from negotiations between attorneys.
- Acrimony between parties is not an exceptional circumstance. The Court highlighted that mediation often works precisely where emotions run high.
- Misunderstandings about the mediator’s role cannot justify refusal. Mediators facilitate constructive dialogue; they do not make findings on liability.
The Court stressed the objectives of Rule 41A and the Protocol: promoting non-adversarial resolution, reducing the burden on the court roll, and encouraging cooperation. The defendant’s stance undermined all three.
Finding no exceptional circumstances, the Court concluded that mediation was compulsory.
Adams J granted the plaintiff’s application and directed that:
- The defendant must cooperate fully in the appointment of a mediator.
- The defendant must deliver an amplified Rule 41A notice within ten days, setting out his preferred administrators and proposed mediators.
- The plaintiff must then deliver a corresponding amplified notice within ten days.
- Each party must pay its own costs, given the novelty of the amended Protocol and both parties’ bona fides.
This decision is the first to directly engage with the updated Mediation Protocol, amended on 27 October 2025. The Court’s approach reflects three central principles of the amendments:
- Mediation must be treated seriously and not as a box-ticking exercise.
- Resistance to mediation must be grounded in exceptional, fact-specific reasons.
- Litigants carry positive duties of cooperation, including assisting in selecting a mediator and designing a process suited to the dispute.
The judgement sends a clear message: courts will enforce these duties where litigants adopt obstructionist positions.
Brondani will likely serve as persuasive authority in future cases where parties attempt to resist mediation without strong justification. For practitioners, the ruling provides important guidance:
- Routine refusal will no longer suffice. Courts expect genuine engagement with the mediation process.
- Mediation should be used strategically. Even where settlement seems unlikely, mediation can narrow issues, clarify disputed facts, and reduce time and cost at trial.
- Rule 41A notices must be thoughtful, specific and compliant. Bare assertions of futility or cost sensitivity will not satisfy the Protocol.
To comply with the order, the parties must:
- Deliver their amplified Rule 41A notices within the stipulated timelines.
- Identify appropriate mediators and agree on process administration.
- Prepare for mediation by gathering key documents, clarifying issues and defining settlement parameters.
- Approach the process in good faith, consistent with the Protocol’s requirements.
Brondani v Brondani reinforces what the 2025 amendments made clear: mediation is now a central, compulsory element of civil litigation in the Gauteng High Court. Courts will not accommodate pessimism, hostility, previous settlement failures or misconceptions about mediation as grounds for avoidance.
The decision marks a significant step in the shift toward a culture of cooperation and structured dispute resolution. For practitioners, it is a reminder to advise clients early and carefully: mediation is no longer an optional detour but a mandatory part of the road to justice.
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