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.