Divorces are ideally suited to be resolved through mediation. Why is that? Primarily because it’s cheaper, faster, less damaging and offers customised solutions for the particular needs of divorcing parties. Not all divorces are the same and mediation recognises that and provides for that.
At this stage it seems that most people don’t know enough about mediation to trust the process. Many attorneys, even when they know the process and understand the benefits for their clients, still shy away from mediation for a variety of reasons. They often just like or trust the court process more because they know it better. Or they may prefer not to expose the vulnerabilities of their case to a mediator. Sometimes they want to keep control of their cases and their clients and what he/she knows about the process. Or they may find the less lucrative mediation process not to be beneficial to their practices. Hopefully this last reason is not an important factor for many attorneys.
Sherri Donovan published this article in the Huffington Post, which lists 10 reasons/benefits of mediation for divorcing parties in America:
http://www.huffingtonpost.com/sherri-donovan-esq/celebrate-mediation-day-t_b_1968763.html?
These reasons are equally relevant in South Africa as they are in the United States of America:
1. It’s less costly:
That is as good a reason in South Africa as it is in the US. Saving costs is as important as any other reason. Mediation is considerably cheaper and can prevent the financial ruin which often is the consequence of a contested divorce action.
2. You control the discussion and the outcome:
The mediator helps your spouse and you to identify all the relevant issues between you and then explores options to resolve them, find solutions which both of you like and can agree to. You don’t have to allow the court to impose its solution on you against your will.
3. You get more personal attention:
In mediation you get the chance to convey your views, concerns and interests to an impartial person who is interested in knowing what they are and accommodating them to the fullest. A judge just cannot do that and cannot go outside the issues which are in the court pleadings.
4. Faster resolution:
The parties control the timeline in mediation, not the court rules or court roll. It is very possible to resolve all the issues in a few mediation sessions.
5. Greater confidentiality:
This is very helpful. All the discussions are confidential and information shared in confidence with the mediator, remains confidential. Information which you choose to share with the other side remains privileged, and cannot be used against you in court if the mediation doesn’t result in an agreement.
6. Greater flexibility:
Mediation can be done at any time, on any day, in any place which the parties agree on. The process is extremely flexible to accommodate the needs of the parties.
7. It protects the children from the conflict:
Most parents are caring and responsible adults and will put the interests of their children ahead of their issues and the animosity between them. A mediator can help parties to protect their children while their issues are fully addressed.
8. It’s a less adversarial process:
Litigation is very confrontational while in mediation the parties are guided and assisted towards cooperative problemsolving. Mediators can raise aspects and issues which attorneys are often reluctant to put on the table for strategic reasons. Mediation can address those aspects safely and successfully.
9. There are more opportunities for a creative, customised family plan:
In mediation you are not bound to the legal aspects raised in the summons. More personal issues or longstanding frustrations can be dealt with succesfully through mediation and can ensure that there are fewer problems with co-parenting after the divorce.
10. It provides for greater post-divorce stability:
Where divorcing parties have children the mediation process can ensure better understanding between parties of their respective interests and concerns, and improve their ability to communicate effectively and respectfully. Like it or not, where there are children involved, the parties will have a continued relationship as co-parents and the basis for an improved post-divorce relationship can be achieved through mediation.
In the US mediation has been in use for more than 30 years. In South Africa it is still in its infancy but the reasons to make use of the process are equally relevant here as they are in the US, Europe, Australia and parts of Africa such as Ghana, Kenya and Uganda.
The reasons listed here should at the very least make you aware of the benefits which can be derived from this process. Some hardened professionals/litigants may find some/all of the above reasons naive – but the fact is mediation makes economic sense and provides access to justice for everyone.
Chris Fick
September 2013
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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.