Mandatory mediation. This is a reality that attorneys and their clients must stomach before they are allocated trial dates for matters instituted in the Gauteng Division of the High Court. This is required in terms of the Gauteng High Court Directive (Directive) and Mediation Protocol (Protocol), which became effective on 22 April 2025.

A lot has been said (and is still being said) about the groundbreaking Directive and Protocol, which requires parties to a dispute to mediate their matters before securing a trial date in the Gauteng High Courts. The naysayers argue that it creates an impermissible barrier to justice in those courts. This has the consequence of undermining parties’ rights to a fair public hearing before a court, as provided in Section 34 of the Constitution. To counter that argument, the Directive states that if parties are obligated to engage in mandatory mediation, the parties’ Constitutional rights will not be compromised, and in fact, it would be the contrary. This is because if the Directive and Protocol are properly implemented, the courts’ trial rolls will be unclogged (and clogged the court rolls are - trial dates for 2031 were being allocated for matters in Gauteng in the pre-Directive era). According to the Directive, the court rolls are being consumed with disputes that are actually capable of resolution, which prejudices other matters that are incapable of settlement and need to be determined by way of trial. To support this, the Directive relies on insights that say that a high number of cases settle on the first day of trial. The Directive stresses that compulsory mediation does not equate to a refusal of access to justice and the courts, but rather an obligation placed on the parties to lodge a mediation report if they want to secure a trial date.

With the Directive here to stay, we litigation attorneys, mediators, and our clients are wrapping our heads around the concept of compulsory mediation and how it fits into the legal process in Gauteng. It appears that our overseas contemporaries are also in the same position as us as the concept develops in their own jurisdictions. 

In the landmark case of DKH Retail Limited and others v City Football Group Limited [2024] EWHC 3231 (Ch), the High Court in England made an order directing the parties to undergo mediation before the matter could be referred to trial, an order of the first of its kind.

Superdry PLC (Superdry), a well-known clothing brand, and City Football Group (City Football), the entity handling Manchester City Football Club’s commercial operations, became embroiled in a trademark dispute. Superdry argued that the team’s kit featured the words “Super” and “Dry” and thus denotes Superdry as a sponsor of the team, as opposed to City Football’s actual sponsor, Asahi Super Dry, which is a 0.0% lager.

As part of a pre-trial review, Superdry requested that the court direct the parties to compulsory mediation. In support of their request, Superdry relied upon the decision of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. In Churchill, the English Court’s view was that the court had the power to order unwilling parties to engage in alternative dispute resolution (ADR), provided that the chosen ADR method is straightforward and does not hinder the parties’ inherent rights and access to the court. Superdry argued that if its matter with City Football could be resolved by way of mediation, the parties would stand to save hundreds of thousands of pounds of further legal costs as well as the court’s time and resources.

City Football opposed this request. They argued that whilst it recognised that the court has the power to direct the parties’ compulsory ADR, it should only do so when there is a realistic prospect of success. This was not such a case as prior settlement attempts had proven futile, they said. City Football went on to say that the parties were commercial entities with experienced legal teams, and if a settlement could be reached, one would have expected them to have settled the matter by now. City Football also submitted to the court that it was too late in the day for the parties to engage in mediation, as the litigation had progressed. It also argued that this was a case where the court was required to make a judicial determination on the issue of whether it can use the Ashahi branding on its football kit and other clothing.

In considering City Football’s arguments that there was no prospect of success and this was a case where a ruling is required, the court maintained that experience shows that bringing parties together through mediation can overcome an entrenched reluctance of parties to negotiate. In fact, the court held that “mediation is capable of cracking even the hardest nuts”. The court went on to hold that this was more a case of the parties appearing to have intractable differences rather than City Football needing a judicial determination on the branding issue. The court recognised that for parties to resolve a dispute through mediation meant that they then had a range of options available to them, other than a “yes” or “no” answer, which City Football was seeking.

The court also found little issue with the timing of Superdry’s request. The court recognised that there may be a benefit to this in that the parties’ positions have been crystallised through the exchange of pleadings and witnesses’ statements. The court held that a mediation of the dispute would be “short and sharp” and would not hinder the parties’ trial preparation if the mediation had to fail. Accordingly, the court decided in Superdry’s favour and directed the parties to mandatory mediation before the matter could progress to trial.

The convergence of compulsory mediation in Gauteng and the United Kingdom signals a broader judicial shift in favour of mediation. Litigation practitioners must adapt to this new reality if they have not already done so. Who knows, maybe the courts and mediators are right? Perhaps we will find through experience that mediation can be used as a strategic tool to deliver timely and cost-effective outcomes for our clients.

P.S.: In the end, the judge in the Superdry case was right – there is a postscript to that judgment confirming that the parties had subsequently settled their trademark dispute. Cheers to that!