Mediation can be defined as the process by which a mediator assists the parties with litigation to resolve the dispute between them by facilitating discussions between the parties, by assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. It must be noted that the mediator does not make a decision, even if requested to do so by the disputants. This can be differentiated from arbitration in that an arbitrator hears evidence and arguments in an adjudicative role and makes a decision as to the outcome.
Divorce is an area of law whereby recent developments have changed the approach to mediation. Previously, in the absence of a settlement agreement, issues such as children, maintenance and the division of assets could be left to the court. The Children’s Act 38 of 2005 (hereafter referred to as ‘the Act’) introduces mediation and in certain instances makes mediation a prerequisite. Section 33 of the Act states that if the co-holders of parental responsibilities and rights with regard to children are experiencing difficulties in exercising their responsibilities and rights, those persons must, before seeking the intervention of a court, first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child. In preparing this parenting plan the parties must seek the assistance of a family advocate, social worker, psychologist or mediation through a social worker or other suitably qualified person. The exact meaning of a ‘suitably qualified’ person is yet to be defined.
Acting Judge Brassey in his judgement in Brownlee v Brownlee in the South Gauteng High Court further stressed the need to rely on mediation in matrimonial disputes. The Judge voiced his unhappiness at the failure of both parties’ attorneys as they did not advise their clients to use mediation before settling the matter through the court. In line with this dissatisfaction the Judge capped the fees of the attorneys of both parties.
One cannot conclude that the judgement in the Brownlee case gave precedence to the use of mediation for the resolving of disputes surrounding divorces. However, one should consider the appropriateness of mediation as a dispute resolution mechanism. If encouraged from the onset it has the ability to promote the expeditious and cost effective resolution of disputes.
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.