Communities in South Africa continue to be fractured by service delivery failures, crime and gang-related violence. The impact is felt by families and communities, and in schools, universities and businesses across the country.
A vicious cycle is being fuelled by a number of factors. These include constraints on law enforcement and credible allegations of corruption and political interference in the criminal justice system. At the same time, the judiciary is under strain.
The result is that government agencies, municipalities and service providers are frequently drawn into disputes. If litigated, these can take years to resolve. This drains public resources and further erodes trust in public institutions. Justice delayed is justice denied.
Read more:
Legal claims for medical mistakes are on the rise in South Africa: what’s behind the trend
Mediation can provide a crucial, timely and constructive way to resolve conflict before matters escalate into violence or protracted litigation. Mediation, facilitated by an impartial third party, supports dialogue and meaningful engagement between parties, and the settlement of disputes on mutually acceptable terms.
Mediation paved the way for South Africa’s transition from apartheid to democracy in 1994. It is deeply rooted in the country’s approach to conflict resolution and social dialogue.
Mediation is common practice in community disputes and in labour law and other statutory dispute resolution contexts. But its use in court proceedings has been limited.
The rules of court for the Magistrates’ Courts and the High Court provide for mediation in civil litigated matters. But the uptake has been slow. And the court-annexed mediation project in the Magistrates’ Courts has been put on hold.
Recent developments have seen a shift toward mandatory mediation in civil litigated matters. These include the South Africa Law Reform Commission’s discussion paper. This was published in early 2025 for public input on mediation in civil, commercial and community disputes.
As a labour law scholar and in leading the South African Law Reform Commission’s project on alternative dispute resolution, I have come to appreciate how mediation can transform conflict. It can provide an accessible dispute resolution mechanism across diverse contexts.
But to optimise the use of mediation the following are required:
-
wide-ranging awareness of mediation across institutions and communities and within the legal profession
-
support for training and skills development, particularly for community mediators who play a crucial role in dispute resolution and transforming conflict
-
an integrated and enabling regulatory, institutional and skills development framework, responsive to the diverse contexts in which mediation takes place.
The role of mediators in different contexts
A skilled mediator can mean the difference between conflict that results in violence, destruction and tragedy, and a negotiated outcome and constructive dialogue.
Community leaders, including religious and traditional leaders, can resolve a range of disputes and manage conflict within communities. This includes curbing community violence, de-escalating election violence, and intervening in student unrest and the destruction of property.
Training for community mediators
Mediation training should also be provided to counteract bullying in schools. Scholars can be equipped to intervene as peer mediators and resolve conflict constructively.
Mediation and peace building skills could also equip women to dismantle violence.
Mediation is already used in specialised statutory institutions and tribunals such as the Commission for Conciliation, Mediation and Arbitration, the Companies Tribunal and the South African Revenue Service. Its use can be extended to other administrative bodies supported by an enabling framework.
Mediation is part of a range of alternative dispute resolution mechanisms that can facilitate early dispute resolution and avoid protracted litigation. Hence many countries use court-connected mediation and alternative dispute resolution to improve access to justice.
Read more:
Do you need your day in court? The evolution of dispute resolution
Momentum towards court-connected mandatory mediation
A number of developments are under way, including:
-
the South African Law Reform Commission’s proposal for a Mediation Act for South Africa
-
the Land Court Act 6 of 2023, which allows the court to direct parties to attempt to settle an issue through mediation
-
court-mandated mediation introduced in 2025 to manage the Gauteng provincial division’s caseload. A directive and a mediation protocol were introduced.
-
proposed changes to the law on family disputes. The draft bill proposes mandatory mediation before commencing with court processes.
However, the idea of mandatory mediation has received mixed reactions.
Concerns
A range of arguments against mandatory mediation have been mounted. These include:
-
fears that mandatory mediation will be imposed where a matter isn’t suited to mediation, and the risk of coercion to settle
-
concerns that mediation doesn’t generate legal precedent and can produce outcomes not grounded in legal merits
-
the burden of additional costs and delays.
Safeguards must be put in place to mitigate these risks. This includes judicial oversight and case management to ensure that mediation in court processes is used appropriately and supports access to justice.
Mediation isn’t a substitute for court proceedings in matters better suited to litigation. Judicial reform remains important, and litigation must be accessible in cases where it is best suited.
A compelling case for mediation
Integrating mediation within judicial processes provides an opportunity to resolve structural tensions within South Africa’s plural legal system.
South Africa’s legal system incorporates elements of English common law and Roman-Dutch civilian law, alongside deep-rooted systems of indigenous laws and traditional methods of conflict resolution. The result is a dissonance between the community oriented features of indigenous customs and the individualistic and industrial nature of statutory laws.
This dissonance is countered by the relational and restorative justice potential of mediation, which resonates with traditional methods of conflict resolution and opens up space to centre the foundational values of indigenous laws.
Next steps
The move towards mandatory mediation adds momentum to an evolving legal system and legal practice. It affirms indigenous values and practices.
Mediation could relieve pressure on the justice system and contribute to an enabling environment for social and economic development.
Access to justice is a public good. It requires access to appropriate legal resources, institutions, and dispute resolution mechanisms. Importantly, building an effective justice system is an ongoing project and a complex human undertaking that cannot be achieved through policy and law reform alone.
Debbie Collier is a commissioner of the South African Law Reform Commission (SALRC) and the project leader for Project 94 on Alternative Dispute Resolution. The views expressed in this article are not necessarily those of the SALRC. Debbie Collier receives funding from the National Research Foundation (NRF).