Medico-Legal Mediation Comes of Age: What Gauteng's Directive Opens Up, and What Ten Years of NHS Data Can Teach Us
- Mediate Works (Pty) Ltd
- 11 minutes ago
- 10 min read
Two things happened in South African medico-legal practice that have not yet been read together.
The first is the scale of the problem. As at 31 May 2025, provincial health departments were carrying 9,567 active medico-legal claims with a combined value of just over R91 billion.
The second is that, since 22 April 2025, civil matters in the Gauteng Division cannot obtain a trial date without a report from an accredited mediator. Medical negligence claims against provincial health departments are civil trials. They are squarely within the directive.
For the first time, a large volume of South African medico-legal disputes will pass through a mediation process as a matter of course rather than by exception. Whether that produces better outcomes is not yet known as the scheme is young and no outcome data has been published. But the opportunity is real, and there is a decade of evidence from a comparable public health system about what determines whether it is taken.
This piece is written for the four groups who will decide that: mediators, clinicians and health administrators, the state's legal representatives, and the attorneys acting for claimants.
The scale of the South African problem
Province | Active claims | Value of active claims |
Eastern Cape | 2,330 | R22.69 billion |
Gauteng | 707 (plus 1,397 dormant) | approx. R21 billion |
KwaZulu-Natal | 1,442 | R17.38 billion |
Limpopo | 1,768 | R12.08 billion |
Mpumalanga | 1,075 | R7.05 billion |
Free State | 441 | R5.82 billion |
North West | 316 | R3.75 billion |
Northern Cape | 91 | R1.34 billion |
Western Cape | 263 | R0.49 billion |
Total | 9,567 | R91.09 billion |
Alongside the value, the timeline matters as much. The Law Reform Commission found in 2017 that around 75% of medical malpractice claims took more than five years to finalise through litigation, with the longest recorded matter running just over sixteen years.
For a claimant who is a child with cerebral palsy requiring therapy now, a settlement in year eleven arrives long after the window in which it would have done the most good. Delay is not a neutral inefficiency in these matters. It is part of the harm.
What we do not yet know about Gauteng
It should be said plainly: there is no published outcome data on the Gauteng directive as it applies to medico-legal claims. The scheme began in April 2025. Nobody can currently say how many directed mediations have occurred in this category, how many settled, at what value relative to the pleaded claim, or how quickly.
That gap is not a criticism of anyone in particular as such schemes take time to generate data. But it is the single most important thing to fix, because everything that follows depends on it, and because the absence of evidence is currently being filled by assertion on both sides of the argument.
The good news is that this problem has been solved elsewhere, and the solution is not complicated.
The NHS comparison: ten years, published data
In 2016 NHS Resolution — the body handling clinical negligence claims against NHS bodies in England, launched a mediation service, contracting with the Centre for Effective Dispute Resolution (CEDR) and Trust Mediation. It is the closest available analogue to the South African position: a single large public payer, a high-volume claims environment, constrained budgets, and clinicians who must keep working while claims run.
The published results are consistent over time.
Settlement & Effect
Reveals that 74% of mediated cases were settled on the day of mediation or within 28 days, with a similar rate of 73% reported for 2024/25. In 2024/25, NHS Resolution resolved 83% of clinical negligence cases without court proceedings, an increase from 66% in 2006/07. Less than 1% of cases go to trial, with only 24 trials occurring in 2024/25.
Volume and Scale of Spend
More than 2,000 claims have been referred to mediation since the scheme's inception, with 138 proceeding to mediation in 2024/25.
Scale of Spend
NHS Resolution paid £3.088 billion in clinical negligence in 2024/25, of which £620 million was claimant legal costs — a reminder that in this field the transaction costs are themselves a major part of the problem, and the part mediation is best placed to reduce.
Two features of that record are worth dwelling on.
The first is that a settlement rate around three-quarters has held steady across a decade, different case mixes, and changes of provider. That is a stable finding, not a promising pilot.
The second is what participants said they valued. The evaluation records that mediation gave patients and families face-to-face explanations and apologies, and allowed concerns to be raised that “would not ordinarily be addressed in other forms of dispute resolution.” It found the process put the claimant at the heart of the claim, and that the underlying concerns were “very often not ‘all about the money’.”
Tony Allen, a CEDR mediator makes the same point from the room: carefully managed direct contact between a claimant and the clinical team can produce a human resolution that a round-table meeting, with its forensic focus, tends to crowd out. He is also candid that not every claimant wants that — some prefer not to meet the clinicians at all, and a good process accommodates both.
Why South Africa is well placed to use this
Three features of the local position make the NHS experience more transferable than it might appear.
The Law Reform Commission has already designed the framework. Discussion Paper 154 under Project 141 proposed that mediation should remain voluntary in outcome but that it be compulsory to attempt before instituting proceedings, with courts requiring parties to justify a failure to do so. It went further, proposing provincial lists of accredited mediators, pre-mediation clauses in hospital admission documents, state funding for mediation where the state is defendant, and that the state be represented by a person with actual financial authority to settle.
The Gauteng directive has, in practical effect, brought the first of those proposals into operation for matters in that Division. The remaining proposals are the ones that determine whether it works.
There is local proof of concept. Between October 2019 and February 2020, thirteen mediated cases saved the Gauteng health department approximately R10 million. Thirteen cases is a pilot, not a programme, and it should not be oversold. But it is a positive signal from the same department now operating under the directive. The data from the Gauteng Mandatory mediation project is highly anticipated.
The claims are concentrated. With a single provincial department as defendant in most matters, a decision to resource mediation properly can change outcomes across thousands of claims at once. That is the same structural advantage NHS Resolution had, and it is the reason its scheme scaled.
The justice question, taken seriously
There is a genuine debate about whether compelling mediation is fair, and it deserves better than dismissal from either direction.
Writing for Spotlight in 2022, Baone Twala of SECTION27 argued that the Law Reform Commission's proposals prioritise the state's interests, and that “the expectation seems to be that claimants must accommodate the state's incapacity to pay.” Where compensation is capped or converted into service undertakings, a claimant who was already harmed by inadequate care bears the burden a second time. Twala also noted that the investigation was confined to public healthcare, leaving private-sector negligence unaddressed.
Emma Zeb KC, writing in 2026, identifies the practitioner's version of the same worry: power imbalances can pressure vulnerable claimants into settlements they later regret, mediation generates no precedent or public accountability, and a party can use the process tactically to test a position without any intention of settling.
These are not arguments against mediation. They are a specification of the conditions under which mediation is just, and every one of them is a design question with a known answer:
A claimant needs independent advice and adequate time. Build both in.
A claimant needs the defendant's records well before the session, not on the day
Where accountability matters more than money to a family, the process must be capable of delivering explanation and apology, not only a figure.
Where a party attends without genuine authority, that must be visible on the record.
Meet those conditions and the fairness objection largely dissolves. Fail to meet them and it is correct.
There is a further honest point. Mediation resolves claims; it does not prevent the clinical failures that generate them. Reducing claim volume is the work of staffing, records management, referral pathways and obstetric emergency training. Mediation is how a health system handles the consequences of failure well. It is not a substitute for reducing failure, and no one should present it as one.
What each group can do
For mediators
Accreditation under the directive's annexures is the entry requirement, but medico-legal work needs more than general accreditation. Understand the clinical vocabulary well enough to follow the expert reports. Be able to hold a room in which a family may be hearing an explanation for the first time. Design the process so that the non-monetary items — explanation, apology, an undertaking to review a protocol, care provided in kind — are on the agenda from the pre-mediation, not raised as an afterthought when money stalls.
For clinicians and health administrators
The NHS evidence is that what families most often want is to be told honestly what happened. Participating in that conversation is not an admission of liability, and clinicians who have done it generally describe it as better than the alternative of being cross-examined about the same events years later. Administrators can make the single highest-value change available: delegating defined settlement authority to the person who attends.
For the state's representatives
The Law Reform Commission identified the binding constraint and it has not moved. A mediation at which the state's representative must revert to a committee is not a mediation. Authority bands, agreed in advance and defensible to the Auditor-General, are what convert attendance into settlement. NHS Resolution's 73–74% rate is not the product of goodwill; it is the product of someone in the room being able to say yes.
For claimant attorneys
The concern that mediation produces lower settlements deserves a direct answer rather than a dismissal, and the honest answer has two halves. A mediated settlement may be lower in nominal terms. It may also arrive years earlier, at a fraction of the disbursement cost, without the risk of an adverse costs order, and at a point when the money can still fund the therapy it was meant to fund. Whether that trade is good for a particular client is a judgement, not a rule, but it is a judgement worth making case by case rather than by policy. It is also worth noting candidly that contingency fee structures can pull the other way, which is a reason to be deliberate about the analysis rather than to avoid it.
Five Practical Tips
Settle early where the case can be valued early — and be honest about when it cannot. Early settlement is the single most powerful lever in this field, because the expert layer is where the costs sit and where positions harden. But mediation convened before anyone can value the claim wastes a session and burns goodwill. The practical resolution is usually to separate the issues: mediate liability, or liability and a framework for quantum, as soon as the records are available, and reserve full expert work for what genuinely remains in dispute. Where liability is admitted, there is rarely a good reason to wait.
Confirm the settlement mandate in writing before you diarise anything. Ask who will attend, what monetary authority they hold, and what approval is needed above that figure. If authority rests with a committee that meets monthly, fix that before setting a date rather than discovering it at 4pm on the day. This single step probably determines more outcomes than any other.
Exchange the records and a quantum framework in advance. The commonest cause of a failed medico-legal mediation is that one side arrives unable to value the claim. Agree in the pre-mediation what each side needs — hospital records, expert summaries, care and actuarial reports, a schedule of past expenses — and set a date for exchange that leaves time to read them.
Put explanation and apology on the agenda explicitly. The NHS evaluation found the underlying concerns are very often not about money. An explanation of what happened, an apology, or a commitment to review a protocol can be worth more to a family than the marginal rand and costs the department less than cash. Raise these in the pre-mediation. Establish whether the family wants direct contact with the clinical team — some do, some emphatically do not — and design accordingly.
Record outcomes so the next case is easier to settle. For every mediated matter, capture the pleaded value, the settled value, the time from institution to settlement, the costs incurred to that date, and whether the state attended with mandate. NHS Resolution can point to a decade of consistent data, which is why its scheme survived changes of government and provider. South Africa has thirteen cases from a five-month window in 2019. Whoever starts recording properly now will be the one shaping this debate in three years.
Mediate Works (Pty) Ltd has been an independent conflict management and dispute resolution practice since 1997. Our work includes medico-negligence mediation for institutional and individual parties. We are available to discuss process design, mediator selection and pre-mediation preparation.
This article discusses public policy and legal developments and is not legal or clinical advice. Figures reflect the reporting periods stated in the sources listed below; readers should check for more recent data before relying on them. LLMs are used in the development of this blog. Review Mediator Works Policies.
References
South Africa
1. Muller EC, Strydom CM, Hartslief B, Truter H, Strauss PR. “Taking medicolegal mediation from principle to practice: A South African venture.” South African Medical Journal 2026;116(1). https://www.scielo.org.za/pdf/samj/v116n1/12.pdf (Table 1: 9,567 active claims; R91,090,025,324.33; as at 31 May 2025)
2. Directive on Mediation in the Gauteng Division of the High Court, 22 April 2025. https://www.judiciary.org.za/images/Directives/Directives_2025/DIRECTIVE%20ON%20MEDIATION%20IN%20THE%20GAUTENG%20DIVISION%20-%2022042025.pdf
3. South African Law Reform Commission, Discussion Paper 154, Project 141, Medico-Legal Claims, October 2021. https://www.justice.gov.za/salrc/dpapers/dp154-prj141-Medico-Legal-Claims.pdf (paras 20.7–20.8; proposals on accredited mediator lists, pre-mediation clauses, state funding and settlement authority)
4. Zeenat Emmamally, “Addressing Provincial Health Departments' Medicolegal Claims Liability II”, Helen Suzman Foundation, 15 July 2021. https://hsf.org.za/publications/hsf-briefs/addressing-provincial-health-departments-medicolegal-claims-liability-ii-transforming-litigation-strategies-and-tackling-corruption (Gauteng: 13 mediated cases, R10 million saved, October 2019 – February 2020, citing News24, 13 February 2020; 75% of claims exceeding five years and the sixteen-year matter, citing SALRC Issue Paper 33, May 2017)
5. Baone Twala, “OPINION: What the Law Reform Commission's proposals on medico-legal cases can mean for claimants”, Spotlight, 15 February 2022. https://www.spotlightnsp.co.za/2022/02/15/opinion-what-the-law-reform-commissions-proposals-on-medico-legal-cases-can-mean-for-claimants/
6. Parliamentary Monitoring Group, “Impact of medico-legal claims on provincial health budgets and mitigation measures: AGSA & DoH briefing”, Select Committee on Appropriations. https://pmg.org.za/committee-meeting/37590/
United Kingdom
7. NHS Resolution, Mediation in healthcare claims – an evaluation. https://resolution.nhs.uk/2020/02/12/mediation-in-healthcare-claims-an-evaluation/ (74% of mediated cases settle on the day or within 28 days; participant feedback on explanations and apologies)
8. NHS Resolution, “Alternative dispute resolution”. https://resolution.nhs.uk/services/claims-management/alternative-dispute-resolution/ (providers: CEDR, Trust Mediation, CADR, St John's Buildings; Early Neutral Evaluation; fewer than 1% of cases reach trial)
9. Muiris Lyons, “A New Era for ADR in Clinical Negligence?”, CEDR, 26 February 2026. https://www.cedr.com/insights/a-new-era-for-adr-in-clinical-negligence (2,000+ referrals since 2016; 138 mediations in 2024/25; 73% settling on the day or within 28 days; 83% resolved without litigation in 2024/25 against 66% in 2006/07; £3.088 billion paid including £620 million claimant costs; 24 trials)
10. Tony Allen, “Mediating clinical claims: a mediator's eye view”, Bloomsbury Professional 2018 https://www.bloomsburyprofessional.com/uk/mediating-clinical-claims-9781526506405/
11. Emma Zeb KC, “Mediation in Personal Injury and Clinical Negligence: The pros and cons”, Gatehouse Chambers, 6 May 2026. https://gatehouselaw.co.uk/mediation-in-personal-injury-and-clinical-negligence-the-pros-and-cons/
Comments