Divorce processes and the dissolution of marriage in South Africa is regulated by our Divorce Act and the Matrimonial Property Act. These acts do not formally require parties contemplating divorce to enter into divorce mediation. However, our courts have recently started increasing the pressure on legal practitioners to advise their clients to enter into divorce mediation before the parties are to appear in court. This pressure is evidenced in a number of recent judgments made by our courts and reflects a growing sentiment that divorce mediation is an important step in divorce proceedings
There have been a number of recent court cases that dealt specifically 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 Matter in the South Gauteng High Court, by Acting Judge Brassey who specifically focussed on the duty of parties to a dispute to attempt to mediate the dispute and the obligation of the opposing legal teams and attorneys to encourage mediation with their clients, before litigation commences.
The judgment emphasised the benefits of mediation and also placed a limit on the fees of the attorneys on both sides because they had failed to advise their clients to mediate at an early stage. It is fairly common that unsuccessful litigants have to pay the legal costs of the successful party. Judge Brassey expressed his disapproval of the parties’ conduct and made each party bear their own costs.
In the matter of 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 matter, the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an contact rights 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.
In essence if a person fails to consider mediation in cases where such is appropriate and required, he/she does so to his or her own detriment and may find that the court orders such a process to be followed before considering any application for divorce.
DIVORCE MEDIATION STRUCTURES
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.
Mediators have to complete accredited mediation training with a recognised organisation, of which some of the most recognised organisations are the South African Association of Mediators in Divorce and Family Matters based in Gauteng (SAAM) and the Family Mediators Association of the Cape based in the Western Cape (FAMAC). These organisations can be contacted to find an accredited mediator in your area. Using an accredited mediator would mean that the mediator will be bound by the rules of the organisation he or she is a member of, as well as being bound by its code of conduct and disciplinary procedures. These mediators are also required to maintain their mediation skills by attending on going in-service training.
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).
Mediation in respect of divorce proceedings is certainly growing in importance and is being supported by our courts as an important step in divorce proceedings and should be considered as a viable option by spouses contemplating divorce.