Mediation is a round table negation process whereby an independent third party, a mediator, assists in the settlement of a dispute between two contending parties. One of the best applications of Mediation is seen in Divorce proceedings. As will be shown below, Mediation is not an alternative Divorce procedure; it is a powerful tool that facilitates an amicable separation of spouses.
Firstly, how does Mediation work?
The goal of Mediation is to create a Memorandum of Understanding [MOU]. This is a document recording all decisions the couple make together regarding;
- Maintenance of either spouse and/or Children,
- Division of Assets,
- Residency/ Custody and Access to Children,
- Any other significant decision regarding the terms of their Divorce,
This MOU is created during sessions with the mediator. The number of sessions required and the time of each session is dependent on the complexity of issues and the willingness of the parties to participate.
A quick side note; the success or failure of Mediation is dependent on the willingness of the parties to participate in the proceedings.
The MOU is not legally binding. Once a MOU is created, an Attorney will incorporate the MOU into a Settlement Agreement. The Parties then approach the court to have the Settlement Agreement made an order of Court as part of their Divorce Order.
A second important question that needs to be addressed, who can be the mediator?
A mediator should be an impartial third person. They should be able to provide specialized information regarding the emotional impact of divorce and facilitate the fair division of assets.
Is mediation confidential ?
Absolutely. A mediator is bound by professional ethics. This binds them to be both impartial and retain all disclosed information in confidence.
The exception to the confidentiality rule is if the mediator reasonably believes that a person’s life or welfare is in danger.
A super important note on confidentiality: neither party may use the information disclosed in Mediation in court UNLESS that information is included in the MOU.
Lastly, why should you consider Mediation ?
- Mediation creates an amicable, co-operative environment and separation,
- Saves time and money,
- The couple create their own Divorce agreement, which makes the agreement easier to abide by and cuts out a lot of resentment or ill feeling.
- The amicable, co-operative environment is better for any Children involved.
It is not yet compulsory in South Africa to attempt Mediation, before going directly to Court. However, since the case of Brownlee v Brownlee there is now a duty upon Attorneys to suggest and explain the advantages of Mediation to their clients.
SOURCES:
Brownlee v Brownlee, Johannesburg High Court [Case Number: 25274/2008]
Family Life Centre, Divorce Mediation (Unknown publication date) accessed at: http://www.familylife.co.za/downloads/FLC%20Divorce%20Mediation.pdf (accessed on: 04/12/2015)
South African Association of Mediators; http://www.saam.org.za/mediators/family-and-divorce-mediators/
