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