Mediation in Family Law

Many family disputes have a high potentiality to become acrimonious, particularly where the parties are seeking a divorce. Spouses embroiled in a divorce, often become consumed in pushing for a successful outcome against the other party, losing sight of the cost and time factor involved.

Often the parties to these disputes erroneously conclude that mediation is a “soft option” only to be pursued by the party with a “weak case”. In most a successful outcome comes at a high cost (both monetary and emotional), and victory at trial is often pyrrhic at best.

Advantages of Mediation

Mediation is defined as a flexible process conducted confidentially in which a neutral third-party (the mediator) assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution. (Vettori, S 2015 “Mandatory mediation: An obstacle to access to justice?” Afr. hum. rights law j. vol.15 n.2 Pretoria)

Unlike main stream litigation, mediation is private and confidential and focusses on the needs of the parties. The mediator acts as a neutral third party facilitating the process to ensure that the parties resolve their dispute in ways that best suits their needs as opposed to a ruling or decision being imposed arbitrarily by a judicial officer such a judge or magistrate.

Usually a mediation that results in settlement brings about an end to the dispute in a far shorter period than court proceedings. The fact that the settlement is voluntarily entered into by the parties, and it is the parties themselves that control the outcome, often results in higher rates of client satisfaction in a more expedient and cost effective manner. Mediated settlements are not restricted to remedies set out in law. The parties can be very creative in fashioning settlements as they are not confined by any limits imposed by law. (Vettori, S 2015 “Mandatory mediation: An obstacle to access to justice?” Afr. hum. rights law j. vol.15 n.2 Pretoria)

The relationship between divorcing parties will be tested time and again, even after the children have left the nest. There will be birthdays, graduations and other school-related activities, weddings, grandchildren, funerals and other important events that will require some contact between the parties. The more amicable parents are during the divorce process and the better they cope during the stressful time,  the better the chances are of any children of the marriage suffering less trauma.

Mediation specifically in divorce matters has been regulated by The Mediation in Certain Divorce Matters Act 24 of 1987 (MDMA) “This piece of legislation necessitates the compulsory process of mediation. The purpose of the MDMA, according to its long title, is to protect the interests of children in the event of a divorce and to consider the recommendations and report of the Family Advocate before granting a decree of divorce. (Maclons, W “Mandatory Court Based Mediation as an Alternative Dispute Resolution Process in the South African Civil Justice System.” LLM, University of the Western Cape, at Page 54).

Disadvantages of Mediation

Although mediation is seen as the cost effective route, one needs to err on the side of caution especially if there is a power imbalance between the parties. It is not usually appropriate where there has been abuse, and it may not work in situations where one (or both) of the parties is unprepared to compromise. That said, many people enter the process with very entrenched positions and still reach a compromise. The divorcing parties need to take cognisance of the fact that a relationship will necessarily exist between them after the divorce, especially if there are children involved.

If mediation does not result in settlement, it is simply an extra step on the road to justice, with added costs and time.. Second, if mediation is undertaken for improper purposes and is not undertaken in good faith, it can result in the innocent party later being prejudiced in court proceedings because the party who acted in bad faith has become privy to information that would otherwise have been privileged. Examples of the tactical advantages that may be gained by a party who enters into mediation in bad faith include the following: Mediation is entered into for the purpose of making an illicit discovery; to test the opponent’s resolve; or simply to intimidate the other party. (Vettori, S 2015 “Mandatory mediation: An obstacle to access to justice?” Afr. hum. rights law j. vol.15 n.2 Pretoria)

To this end, one needs to be mindful of the aforesaid when electing to proceed with mediation or litigation. A decision should not purely be based on affordability and the length of proceedings but ultimately having the children’s best interest in mind and what affect mediation or litigation will have long after the bonds of marriage have been terminated.

Prepared by:

Ashley Adriaans | Director | Dispute Resolution: Litigation & Arbitration

Dominique Dirks | Candidate Attorney | Dispute Resolution: Litigation & Arbitration

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE