Divorce mediation as an option

22 November 2013 733

The dissolution of marriage in South Africa is regulated by our Divorce Act and the Matrimonial Property Act. These acts do not require parties contemplating divorce to enter into divorce mediation. However, our courts have recently started increasing the pressure on legal practitioners to advise their clients to enter into divorce mediation before the parties are to appear in court. This pressure is evidenced in a number of recent judgments made by our courts and reflects a growing sentiment that divorce mediation is an important step in divorce proceedings.

In the case of Brownlee v Brownlee the court emphasised the duty of the parties to attempt to mediate their dispute before appearing before a competent court and the obligation of the law practitioners to advise and encourage their clients to enter into divorce mediation.

Mediation can also help address issues relating to the care of children, and in this regard Section 6(4) of the Children's Act should also be taken note of as it determines that in every matter in which the interests of a child are at stake an approach which is conducive to conciliation and problem-solving is advocated and a confrontational approach and delays in any action or decision should be avoided as far as possible.

In the case of Van den Berg v Le Roux the court ordered the parties to undergo mediation for all future custody disputes with regard to their 10-year-old daughter and only after completion of the mediation process could either of the parties approach a court for a ruling. In Townsend-Turner and another v Morrow the parties were ordered to attend mediation for a period of three months or at least four sessions in an effort to resolve the issue of access between the father of a 7-year-old boy and the boy’s maternal grandmother.

In essence if a person fails to consider mediation in cases where such is appropriate and required, he/she does so to his or her own detriment and may find that the court orders such a process to be followed before considering any application for divorce.

One of the most important aspects of divorce mediation to consider is the fact that the spouses reach their own mutually satisfying decision based on the guidance and facilitation of an impartial and neutral third party. Mediation is confidential and recognises the rights of all the family members. The process is also flexible which allows it to be adapted to each unique situation and the different needs of the spouses.

The success of divorce mediation lies in the hands of the spouses and not the mediator. If the spouses are willing to work together in order to achieve a settlement, mediation can be successful, if they choose not to cooperate they will have to enter into contested divorce litigation which may be a very costly and unpleasant exercise. If one of the spouses is uncertain as to whether he/she wishes to get divorced mediation can also be terminated with the spouses being encouraged to seek professional help and counselling in an effort to save their marriage.

Attorneys may be present in the mediation process and the spouses are free to consult with their attorneys during mediation, but it is preferable that the attorneys not be allowed to be present during the actual mediation sessions to allow the parties the freedom to arrive at a settlement. Where the mediator is an attorney it is important to note that he/she should not also act as the legal representative of one of the spouses but should act impartially.

Mediators have to complete accredited mediation training with a recognised organisation, of which some of the most recognised organisations are the South African Association of Mediators in Divorce and Family Matters based in Gauteng (SAAM) and the Family Mediators Association of the Cape based in the Western Cape (FAMAC). These organisations can be contacted to find an accredited mediator in your area. Using an accredited mediator would mean that the mediator will be bound by the rules of the organisation he or she is a member of, as well as being bound by its code of conduct and disciplinary procedures. These mediators are also required to maintain their mediation skills by attending on going in-service training.

Mediation in respect of divorce proceedings is certainly growing in importance and is being supported by our courts as an important step in divorce proceedings and should be considered as a viable option by spouses contemplating divorce.