Rule 41A: what the mediation notice means and what to do with it
The notice that comes with every new High Court case, what each side must say and by when, whether you can be forced to mediate, and what is different in Gauteng.
- Last updated:
- 14 November 2026
- Checked against the law:
- 14 November 2026
The short answer
In every new High Court case, the person starting it must serve a notice saying whether they agree to mediation or oppose it. The other side must answer with a notice of their own. Under the rule, mediation is voluntary. In the Gauteng High Court, a directive adds that no trial date is given until mediation has been tried.
Mediation is not safe if there has been abuse, threats or fear. If that is your situation, start with crisis lines and protection orders. You are allowed to oppose mediation.
At a glance
- What it is
- A notice about mediation
- Each side says whether it agrees to mediation or opposes it.
- Which court
- The High Court
- Rule 41A is one of the High Court's rules.
- Can you be forced?
- Not under the rule
- Mediation is voluntary. A court can at most direct a party to consider it.
- In Gauteng
- Mediation before a trial date
- Under the directive of 22 April 2025.
What mediation is, in the rule's terms
Four features
- It is voluntary, and entered into by agreement
- The two of you agree how it will run
- The mediator is impartial, decides nothing and imposes no settlement
- It is confidential
The mediator helps you identify the issues, look at options and find a compromise.
Step by step
The first notice
- Who:
- The spouse who starts the case
Served together with the summons or notice of motion. It states whether that spouse agrees to refer the dispute to mediation, or opposes it.
The answering notice
- Who:
- The other spouse
- How long:
- No later than the plea or answering affidavit
Served when giving notice of an intention to defend or oppose, or afterwards, but not later than the plea or answering affidavit. It states the same thing: agree, or oppose.
If you both agree
- Who:
- Both of you, and a mediator
You choose a mediator and agree how the mediation will run. Anything agreed there is yours to take to court.
If either of you opposes
- Who:
- The court
The case carries on. In the Gauteng High Court you will meet the question again before a trial date is given.
What can happen
You mediate and settle
The quickest
The divorce can then run as uncontested.
You mediate and settle part of it
Possible
The court decides only what is left.
One of you opposes
Allowed
The rule does not make mediation compulsory, and no party can be compelled to mediate.
A notice is left out
Not fatal
In the case this guide relies on, the court said the rule sets no penalty for leaving the notice out, and that leaving it out does not end the case.
What goes wrong
Ignoring the notice because it looks like a formality
Your own notice has to be served by then.
Worth checking: the date your plea or answering affidavit is due.
Agreeing to mediate when it is not safe
Mediation depends on both people being able to speak and to refuse. You may oppose it.
Worth checking: whether you feel free to say no in the room.
Thinking opposition ends the question
In the Gauteng High Court, mediation has to be tried before a trial date is given.
Worth checking: which court your case is in.
Walking in unprepared
The mediator decides nothing. What comes out is what the two of you bring and agree.
Worth checking: what you want, what you could accept, and what the figures are.
What to gather
Before a mediation session
- The four areas: the children, maintenance, property, and pensions and debts
- For each, what you want, and what you could live with
- The figures: income, monthly costs, what is owned and owed
- Anything you already agree on, written down
What this means for you
The notice is a question, and you are allowed to answer either way. If you do mediate, the outcome is only as good as what each of you brings to it.
Sources
Every legal statement in this guide comes from one of these. We checked each statement against its source. A legal practitioner has not reviewed this guide.
Independent. Not a law firm. Legal information, not legal advice.