Following the introduction of mandatory mediation in the Gauteng Division of the High Court, a recent judgment in Brondani v Brondani provides important guidance on the application of the Directive introducing Mandatory Mediation in the Gauteng Division and Protocol. While the Protocol, which was recently amended, has uplifted the procedural import of Rule 41A, uncertainty has persisted over the threshold for opposing a referral to mediation and the meaning of ‘cogent reasons’ under paragraph 4.7. Although the court’s decision offers some clarity, it also introduces a more stringent standard for avoiding mediation.
Background to the dispute
The underlying action concerns a claim for damages arising from an alleged physical assault, with the plaintiff seeking over R1 million in damages and the defendant counterclaiming for more than R2.5 million. The matter has a protracted history of unsuccessful settlement attempts and deeply conflicting versions of events.
Against this backdrop, the plaintiff brought an interlocutory application under Rule 41A seeking an order compelling the defendant to participate in the mediation process and to file an amplified notice naming proposed mediators. In filing his Rule 41A(2)(b) notice, the defendant refused to mediate on the basis that it would be futile, costly, and beyond the mediator’s mandate given the factual disputes and parties’ acrimonious history and failed negotiations.
Assessing ‘cogent reasons’
A core question was whether the defendant’s Rule 41A(2)(b) notice constituted an ‘irregular notice’ under paragraph 4.7 of the Protocol. Under this provision, a notice is rendered irregular if it rejects mediation without ‘cogent reasons’ that are specific to the facts of the case. While the court found that the defendant’s notice did contain cogent reasons – tied to the facts – for opposing mediation, the substance of his reasons did not justify an exemption.
Central to this finding is the court’s articulation of the purpose underpinning the Mediation Directive and Protocol. Notably, paragraph 2 of the Protocol specifies that mediation is intended to:
- Establish a structured framework for court-annexed mediation;
- Reduce congestion on the court rolls;
- Augment access to justice through a cost-effective alternative; and
- Promote cooperation and mutual respect among litigants.
Evaluated against those objectives, the court held that the defendant’s stance, which was based on previous failed settlement discussions, subjective pessimism, and concerns about additional costs, did not constitute grounds for avoiding mediation. Importantly, to accept such objections would ultimately undermine the Directive’s aims.
The bar of ‘exceptional circumstances’
Significantly, the judgment introduces a refinement: Although the Protocol requires ‘cogent reasons,’ the court held that the avoidance of mediation also necessitates ‘exceptional circumstances.’ Applied to the facts, the court concluded that the following circumstances do not qualify as exceptional:
- A litigant’s personal belief that mediation will fail;
- Previous failed settlement attempts;
- Acrimony between the parties; and
- The fact that a mediator does not have adjudicative powers.
While these factors may explain why a party resists mediation, they do not justify an exemption. Indeed, mediation is facilitative: The mediator – an impartial third party –reframes issues, facilitates communication, and helps participants explore solutions they may not have considered. Believing that a matter ‘cannot be mediated’ because it requires factual determination misconstrues the mediator’s role.
Importantly, by insisting on exceptional circumstances, the judgment raises the threshold for resisting mediation above what many legal practitioners may have assumed from the wording of the Protocol.
The court’s order
Although the defendant acted in good faith and provided cogent reasons, the court held that he had not shown exceptional circumstances. Accordingly, he was ordered to cooperate in appointing a mediator, deliver an amplified Rule 41A notice naming proposed mediators, and to participate constructively in the mediation process under the Directive and Protocol.
Conclusion
Brondani v Brondani resolves one ambiguity in the Mediation Protocol, but simultaneously creates a new uncertainty by requiring ‘exceptional circumstances’ to bypass mediation in the litigation process. Until further jurisprudence provides clarity, it is necessary for Gauteng-based litigants, who intend to avoid mediation, to ensure that their reasons are cogent and that avoidance is justified by exceptional circumstances. Ultimately, however, the judgment accentuates the Directive’s core purpose: Mediation is mandatory, and avoiding it is a rare exception.
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