The Past and Future of Mediation: A 30-year perspective
It was asserted during a recent event celebrating 30 years of Conflict Dynamics' contribution to mediation in South Africa, that ‘mediation flourishes where judges make it happen’. Former Judge President of the Gauteng Division of the High Court and now Deputy Chief Justice, Dunstan Mlambo, is making mediation happen with the implementation of the Directive and Protocol for civil trial matters in the Gauteng Division of the High Court. This is bringing mediation into the spotlight for litigants, their representative and mediators.
The Deputy Chief Justice delivered the keynote address at the event. He examined the progress of mediation in South Africa, which has its roots in the establishment of IMSSA as early as 1984, the practical challenges it faces, and the institutional support needed to strengthen and establish it within the country's justice system. What was clear from both Mlambo’s speech and the subsequent panel discussion is that South Africa has considerable experience and expertise on which to draw, but the challenge now is to translate this legacy into a mediation system that more people can understand, access and afford.
A legacy of resolving conflict
The African continent has a long tradition of consultation and conflict resolution facilitated by headmen, chiefs, and community leaders, not only for the resolution of disputes but for the preservation of relationships.
Mlambo believes mediation creates an opportunity to examine what needs to change if a conflict is not to be repeated. Historically, this has been demonstrated in South Africa's labour sector, where early mediation initiatives helped parties move beyond the immediate dispute towards improved working relationships. The country's transition to democracy also demonstrated the value of negotiated processes when third party interventions helped CODESA overcome deadlocks. Mediation also played a critical role at a particularly sensitive moment before the 1994 elections when the ANC, IFP and NP failed to reach an agreement on the IFP’s participation and Kenyan mediator, Professor Washington Okumu, stepped in.
This legacy has provided a foundation for the development of mediation in other sectors which Conflict Dynamics has bridged, having developed the training for the first cohort of CCMA commissioners before expanding their work in commercial and civil mediation.
The CCMA's settlement rate of 77%, reported in its 2024/25 annual report is evidence of the value of conciliation in resolving disputes. However, Mlambo cautioned against judging success on settlement figures alone as these do not necessarily tell us enough about the fairness of outcomes, implementation of agreements and the experience of participants.
From experience to wider access
The question is how past experience can carry into the civil justice system, where delays and the cost of litigation continue to make access to justice unattainable for many South Africans.
Mlambo identified the burden on the courts, together with a litigious mindset among the legal fraternity, as significant drivers behind the Gauteng Directive and Protocol. Waiting periods for trial dates as long as six or seven years, and the 11th hour settlement of many matters on the steps of the courthouse raise the question of why the work required to reach an agreement could not have happened much earlier.
The Directive and Protocol requires earlier engagement, freeing up court capacity for matters that genuinely require judicial intervention. It also challenges the assumption that mandatory mediation means parties are being forced to settle. As panellist Vanessa Jacklin-Levin, a partner at Bowmans, explained, parties are required to have a conversation, not to reach an agreement.
The number of mediations requested from Conflict Dynamics since the introduction of the Directive and Protocol is indicative of a growing willingness to engage with the process. The company received 444 mediation requests in the nine months following the Directive and Protocol’s implementation in 2025, finalising 98 matters. In the nine months to September 2026, it received a further 1 044 requests and finalised 467, with 65% resulting in full or partial settlement. Both the number of requests and the settlement rates are climbing as parties become more familiar with and confident in the process.
The long-term measure of success will be whether mediation becomes a trusted and accessible part of the way South Africans resolve disputes.
The need for a coherent framework
For this to happen, Mlambo argued, South Africa needs a national framework that connects mediation with court processes and specialist services, requiring legislation that addresses professional standards, confidentiality, affordability and the enforceability of mediated agreements, while ensuring that parties retain access to the courts if mediation fails.
The proposed Mediation Act is an important part of this unfinished work. Professor Debbie Collier, Law Reform Commission project lead, outlined the progress made in developing the legislation, including consultations, workshops and written submissions. While the work is nearing completion, experience shows how legislation can be delayed in the political and administrative system.
There is also work underway within the mediation profession itself. Panellist Hendrik Kotze, one of the architects of DiSAC’s standards for mediator accreditation, highlighted the importance of establishing consistent professional standards. The next step is to develop a fully-fledged professional body capable of providing the public with confidence that mediators will meet recognised standards of competence, with Conflict Dynamics setting an internationally aligned standard.
Changing the way we approach conflict
Legislation and professional standards alone will not entrench a mediation culture; a significant shift in the mindset of the legal profession is also needed.
Jacklin-Levin acknowledged that South Africa's litigious mindset is deeply entrenched among attorneys. Lawyers need to rethink how they measure success – not in terms of court wins but by offering a cost-effective solution for clients through mediation. Lawyers need to become problem-solvers, raising weaknesses in a client's case and exploring possible solutions much earlier in their consultation process. Panellist Robert LeGrange, a Judge in the Western Cape Division of the Labour Court believes that the introduction of the Directive and Protocol represents a ‘bold move’, importing it into a legal culture where few lawyers have grown up in the labour tradition and for whom mediation is anathema.
Mediation can reduce costs, avoid lengthy litigation and most important, preserve relationships. Even when it does not result in a settlement, it can provide a route to another form of resolution, and is not detrimental to the legal economic model.
International experience offers useful lessons. Tony Allen, a legal commentator on mediation-related jurisprudence in the UK, observed that the judiciary plays an important role in creating an environment in which mediation can flourish. He believes that courts are not the only places in which disputes can be ended and that mediation offers parties a safe and confidential space to speak openly and achieve outcomes that are acceptable to both of them.
As Susanne Schuler, CEDR's Global Director of Development noted, mediation needs to reflect the cultural context in which it operates. International standards are valuable, but local ownership and an understanding of how different societies approach conflict are essential to making the process work and making mediation part of the judicial ecosystem.
Building the next 30 years
For Conflict Dynamics, celebrating 30 years is an opportunity to recognise how far mediation has come, but also to consider what needs to happen next. South Africa has developed considerable expertise in managing conflict, often in circumstances of extreme complexity. That experience should give the country confidence in its ability to play a greater role in the future of mediation, both locally and internationally.
The next phase will require collaboration between the judiciary, legal profession, mediators, government and the institutions responsible for developing and regulating the profession. It will also require investment in the next generation, introducing young people and law students to negotiation, mediation and conflict resolution before litigation becomes their default response.
As Mlambo observed, there is reason to be optimistic about the potential for a change in mindset. The challenge is to ensure that the momentum created by the Gauteng Directive and Protocol, together with the country's considerable mediation experience, translates into lasting change.
Ultimately, the future of mediation in South Africa will be determined not simply by how many disputes are settled, but by whether people have access to methods of resolving conflicts that are cost effective, speedy, trusted, affordable and effective.