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Mediation as a viable alternative to an emotionally and financially draining divorce.

We have all heard of people going through a messy divorce and it costing a fortune. One of the reasons for this is that the parties enter into litigation with high expectations that are often impossible to meet and then take an inflexible position. There is an alternative.

With the high cost and long delays in litigation, parties are turning to a more progressive form of dispute resolution in order to settle their differences. South Africa, like many other countries, is offering litigants an alternative, one which has various benefits, which allows the parties to explore their options. Moving away from the model of assigning blame, mediation allows parties to move beyond the power struggle and into a ‘win- win’ situation.

Mediation is not a counseling session to get parties back together, but rather a process by which parties are involved in negotiation sessions, assisted by a mediator who facilitates discussion between them so that they can find a workable solution.

The benefits of mediation depend largely on the nature of the dispute. Ultimately the benefits vary. What should be considered is the
following:

Choosing your mediator - Unlike the legal process, where Judges or Magistrates are allocated to a matter on the day of trial, and over
which the parties have no control, the parties can find a mediator who they feel can best assist them with their particular dispute. That dispute can be over any aspect of the dissolution of the relationship, inter alia splitting of assets, proprietary interests, contact with children, maintenance for spouses or children, pension funds, parental rights and responsibilities, holiday contact, best interest of the child, schooling, contact with extended family, parenting plans, etc. Parties can elect to mediate with one or more mediators. The co-mediation model, uses two mediators, one with a legal background and one with a social work/psychology background. This will ensure all the disputes will be suitably canvassed by a suitably qualified person.

Choosing the time periods - Litigation involves very strict time periods, that are prescribed by the Rules of Court, that a party may feel are either too long or too short for their particular needs. In mediation, on the other hand, parties are able to determine how quickly or how slowly they wish to take the process, allowing complete flexibility depending on their personal circumstances.

Cost of litigation vs mediation - Litigation is very expensive. Litigation requires Attorneys and sometimes Advocates. Costs can
escalate into hundreds of thousands of Rands. Mediation costs far less and usually involves the costs of only the sessions themselves as most of the background work is done by the individual parties. The Memo of Understanding, your Agreement of Settlement and the unopposed
divorce costs are an additional expense.

Confidentiality - Parties to a mediation are usually required to sign a mediation agreement. This agreement includes a confidentiality
clause whereby parties agree that what they discuss during mediation is without prejudice and confidential and that it may not be used outside the mediation session. This allows parties to make full disclosure without the fear of having information disclosed. This is however dependent on the parties entering mediation with honourable intentions.

- An overwhelmingly positive aspect of mediation is the fact that the parties become part of the solution. The process allows the parties to explore alternatives, create options, discuss solutions and allows the parties to choose the one that best suits them. Discussions will be held around how decisions will be negotiated and made, the development of effective communication strategies and the development of conflict resolution strategies. As a result, parties are not compelled to follow a ‘one size fits all’ approach and they tailor make the settlement that suits them. This ultimately leads to parties adhering to a settlement to a greater extent as they participated in its making.

Unfortunately not all mediations end in a final settlement being reached. This is not a complete failure however, as one would usually find that certain aspects have been settled and that the mediation process has narrowed down the issues in dispute between the parties.

Whilst it must be conceded that mediation is not suitable in all divorce matters (for example when there are allegations of violence between the parties), it is a viable alternative in normal divorce situations.

Taking control of your divorce settlement process and taking an informed and progressive view to finding a solution we believe is the
key to success. Remember – divorce should mean the dissolution of the marriage between the spouses and not the total annihilation of
the family structure and all the complex relationships that exist therein. Mediation is a positive approach to divorce.

Mediation can facilitate an easier transition for all concerned from a pre - to post divorce situation. Perhaps the most important aspect of mediation is that it focuses on the best interest of the children, who regrettably are sometimes the silent victims of divorce.


Terry-Lynne Killops 082 852 3002 (Johannesburg North)
Bev Loubser 082 575 9711 (Johannesburg South)
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Born to Shine Magazine

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