Divorce Mediation In South Africa

Divorce Mediation in South Africa				the mediation process is not restricted solely to legal
1 Introduction				issues, and allows parties to deal with all facets of
A number of recent court cases dealt with the				divorce.
importance of mediation in family law matters. The				4.6 Divorce mediation can be cost effective
most recent judgement dealing with the aspect of				Although mediation may be more expensive than an
divorce mediation was the judgement in Brownlee v				uncontested divorce, it is definitely much cheaper than
Brownlee in the South Gauteng High Court, by Acting				contested divorce litigation. In South Africa, the going
Judge Brassey that focussed on the duty of parties to				rate for a mediation session is anything between R500
a dispute to attempt to mediate the dispute and the				and R2 000, depending on who the mediator is. The
obligation of the opposing attorneys to encourage				mediation process usually runs for a period of four to
mediation with their clients, before litigation commences.				six sessions. Six sessions of mediation may therefore
The judgment emphasised the virtues of mediation				cost parties up to R12 000. In comparison, a very
and also capped the fees of the attorneys on both				straightforward, unopposed divorce costs about R4
sides because they had failed to advise their clients to				500 today and the costs of an opposed divorce may
go to mediation at an early stage. Normally an				run into the hundreds of thousands of rands. Mediation
unsuccessful litigant pays the costs of the successful				can save divorcing parties a considerable amount of
one. Judge Brassey expressed his disapproval of the				money, but can also be more expensive than an
parties' conduct and made each party bear their own				uncontested divorce, where the parties agree
costs. In Van den Berg v Le Roux, Judge Kgomo				amongst themselves on the divorce process.
ordered the parties to privately mediate all future				4.7 Advantages for children affected by
disputes with regard to their 10-year-old daughter and				divorce
ordered that only subsequent to the conclusion of the				The stress and animosity often generated during
mediation process could either party approach a				litigation can be emotionally damaging not only for the
competent court which has jurisdiction to decide the				couple, but for the children as well. Mediation is a
dispute. In Townsend-Turner and another v Morrow				more empowering choice for children because:
the full bench of the Cape Provincial Division of the				- Separating parents maintain control of their children's
High Court made a similar decision when confronted				needs, and can develop a comprehensive parenting
with an access dispute between the father of a				plan.
7-year-old boy and the boy's maternal grandmother.				- Mediation is more private than a traditional divorce.
The parties were ordered to attend mediation offered				Mediation enables those who know the children best,
by private mediators of their own choice or those				namely the parents, and not a third party or institution,
proposed by the office of the family advocate in an				to make decisions about their welfare. Section 28(2) of
effort to resolve the issues of conflict between them				the Constitution of the Republic of South Africa places
including, of course, the issue of access. The court				an obligation on, amongst others, on the mediator to
ordered that the mediation had to commence within				see to it that divorcing parties put the interests of their
two weeks of the granting of the order that it should				children first in all negotiations between them. The
continue for a period of at least three months or for				chances of the interests of children being protected in
the duration of at least four mediation sessions. The				the mediation process are therefore excellent.
parties were also ordered to share equally the costs				Research has shown that upon divorce, mediated
of the mediation.				settlement agreements provide far more
2 Divorce mediation structures in				advantageous provisions regarding the interests of
South Africa				children than agreements or orders made in terms of
Despite the fact that much has been written about				the adversarial system.
divorce mediation and some media hype about it in the				Mediation emphasises, that parenthood is not
past two decades, little mediation still takes place in				terminated on divorce, but that both parents retain their
divorce matters in South Africa. One of the major				roles and responsibilities in a restructured family. In
obstacles is the cost factor and only a handful of the				mediated divorce matters there are thus a greater
more prosperous section of the South African society				chance of the non-custodial parent remaining involved
can afford to make use of mediation services. Getting				in his or her children's upbringing. The involvement of
divorced by means of Divorce Mediation commonly				both parents creates a positive atmosphere for
costs around R 12,500-00 in total. Although the costs				children and helps them to adapt to their new
can be shared between the parties it is still expensive				circumstances upon the divorce of their parents.
in comparison to an uncontested divorce where the				5 The disadvantages of divorce and
parties amongst themselves can agree on a division of				family mediation
assets, maintenance, visitation and access and the kids				Divorce mediation is obviously not without problems.
and using a service like will still be more cost effective.				For instance, because a divorce mediator is seen as a
There appear to be a couple of private mediators,				neutral third party, he obviously is in no position to
who are generally affiliated to mediation organisations				advise a party personally.
such as SAAM (The South African Association of				The most important criticisms of divorce mediation are:
Mediators in Divorce and Family Matters), FAMAC				5.1 The shortcomings of the mediator
(The Family Mediators Association of the Cape),				Mediators themselves can have a negative impact on
ADRASA (The Alternative Dispute Resolution				the mediation process, especially where they don't
Association of South Africa) and), it appears that				have a legal background and the disputes at large
these private mediation services are totally				include both child and legal matters. This creates issues
under-utilised. Besides the private services mentioned				where two mediators need to mediate a dispute,
above, divorce and family mediation is also being				which have a bearing on the costs. Thus, if individuals
offered by various non-governmental and				are interested only in mediating a custody or visitation
community-based organisations such as Family Life				problem, they might select a mediator who is skilled as
and FAMSA (The Family and Marriage Society of				a psychologist or social worker. If parties have a
South Africa).				problem resolving spousal maintenance or child support,
In light of the decisions in Brownlee v Brownlee and				they might select a mediator who has experience as
Van den Berg v Le Roux regarding mandatory private				an attorney, accountant or financial planner. Finding a
mediation, it is very clear that divorce mediation, on				mediator with all the necessary skills can be difficult. A
private level, will soon start to play a more prominent				mediator's professional training may further influence
role in South Africa. Mediation in the context explained				his or her neutrality or impartiality. Since mediators from
here should, however, not be confused with the				different professional backgrounds are presently
services offered by the office of the family advocate				involved in mediation, this necessarily gives rise to the
in terms of the Mediation in Certain Divorce Matters				following problems for example mediators who are
Act 24 of 1987 (MCDM). The purpose of the MCDM				trained in the behavioural or social sciences tend to
Act is to evaluate the parties and the circumstances				play a more active role in facilitating the parties'
of a case in order to furnish the court with a report				agreements on the best interests of the children, but
and recommendation on matters concerning the				what about the law?
welfare of any minor children, the activities of family				5.2 Divorce mediation is inappropriate where
advocates and family counsellors should not be				parties do not have equal bargaining power
regarded as mediation (even though they sometimes				According to critics, divorce mediation only reinforces
indeed try to mediate disputes between divorcing				the unequal bargaining power that may exist between
parties).				divorcing parties. They hold that, in the mediation
3 Important aspects of divorce and/or				process, the stronger party may dominate and
family mediation				intimidate the weaker party thereby forcing the
It is impossible to give a general definition of mediation				weaker party to agree to provisions which will benefit
in the family law environment.				the stronger party at the weaker party's expense.
The following elements can, however, be regarded as				According to Winks "Divorce mediation: a
some of the most important features of divorce and				non-adversary procedure for the no-fault divorce",
or family mediation:				feminists feel strongly that women, in particular, are
- An impartial and neutral third party facilitates the				prejudiced by the mediation process, since socially and
negotiation process in which the parties themselves				financially women are generally in a subordinate
make their own decisions.				position to their husbands, a fact which they feel
- The mediation operates under the auspices of the				mediators do not take into account.
law.				5.2 Divorce mediation is inappropriate in
- The mediation process is confidential.				cases of family violence
- The aim of the mediation process is to assist parties				Divorce mediation is totally inappropriate in cases of
to reach a mutually satisfying agreement which				family violence. Women, who are usually the victims of
recognises the needs and rights of all family members.				this violence, has a physiological disadvantage and
- The mediation process is flexible and creative and				powerless against a husband in the mediation process
can be adapted according to the context of the				and will be unable to negotiate fair settlement
dispute and the needs of the parties.				agreements for themselves. Abusers may also avoid
4 Advantages of divorce and/or				criminal-law sanctions for their actions if their divorce is
family mediation				not dealt with by the courts, but settled privately in the
Divorce and/or family mediation has numerous				mediation process where all disclosures of the parties
advantages for divorcing couples, children affected by				are confidential.
divorce and the judicial system in general:				5.3 Mediators cannot always be impartial and neutral
4.1 It is a much less stressful and emotional experience				Mediators cannot always be impartial and neutral, and
than the traditional divorce process.				every mediator has his or her own perceptions of
Working together with a skilled mediator in a				what is fair and right, linked to his or her cultural
negotiation process results in much less animosity and				background, education and training. A mediator's
ill will than the protracted confrontation that often				cultural background may give rise to problems if it is
occurs between adversarial lawyers and their clients.				not the same as that of the parties in the mediation
The shortened time duration of the process, as well as				process. Where mediators are for instance part of a
the considerably lower cost of mediation, also				dominant cultural group they may try to impose their
contributes to a lower level of emotional stress.				values and principles on the parties.
4.2 Divorce mediation is much less expensive and				5.4 Mediation does not offer the same safeguards as
faster than the traditional divorce process.				litigation
The divorcing couple pays one mediator instead of				A fear is often raised that mediation, as an informal
two attorneys. Also, having both parties together during				process, does not offer the parties and their children
mediation sessions dramatically shortens the process				the same safeguards as the adversarial system of
and the billable time of the mediator. The cost of				litigation. In mediation, no formal legal process is in place
divorce mediation is on average 50% lower than the				to ensure the parties' procedural rights, such as the
cost of traditional divorce litigation.				disclosure of all relevant documentation and the testing
4.3 Divorce mediation is better for the children.				of evidence for accuracy. Another concern is that the
The divorcing parents remain in charge of their				parties have less access to attorneys and advocates
children's interests and needs, and are able to				in the mediation process and are therefore denied the
construct a cooperative parenting plan without turning				protection of legal representation. Critics worry that
the children's futures over to judges and lawyers.				mediation does not offer the parties and their children
4.4 Divorce mediation results in a lower rate of				the same just and fair results as traditional litigation in
re-litigation.				the courts does.
Mediated settlements are more comprehensive and				Conclusion
cooperative in nature, producing a much higher rate of				Mediation is an important tool for dealing with divorce
compliance by both parties, and a lower rate of				and family disputes. However, having said that, there
expensive re-litigation. After all, the goal in mediation is				are instances where divorce mediation will simply
to help the spouses come to an agreement that is				burden the parties with extra bills and costs, especially
suitable for their needs and lives.				in the uncontested divorce sphere and it might still be
4.5 Divorce mediation teaches parties how to deal with				cheaper in circumstances to use an online
conflict in a non-aggressive way and gives them the				do-it-yourself divorce service, after all, the best way still
opportunity to express their feelings of bitterness,				would be if the spouses can settle their issues
disappointment and anger.				between themselves. In contested matters however,
It allows parties to deal with those matters they feel				mediation might be more convenient and less
are important, but which the law may consider				emotionally draining and the answer and will in fact be
frivolous or unenforceable. Therefore, unlike in litigation,				cheaper than litigation.

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Divorce Mediation In South Africa