Personal-Finance

Getting divorced? Must you ... mediate or litigate?

2017-12-02 11:21

During the annual 16 Days of Activism for No Violence Against Women and Children, government and organisations campaign against gender-based violence.

If you are in an abusive relationship and want to end your marriage, or even if the reasons for the split are not based on violence in the home, you can divorce without paying the earth in legal fees and heading for the courts.

The way to do this is to consider using mediation as a means to determine who gets what, the finer details of which parent gets custodial rights and who pays the maintenance for the child or children, or who pays the other a spousal allowance if it is required.

With overburdened courts, lengthy trials and exorbitant litigation fees, using a lawyer for the entire divorce process hardly seems logical.

Mediation is already popular internationally, but it is often an overlooked solution in South Africa. However, it shouldn’t be as it can save warring parties a lot of heartache and money.

PJ Veldhuizen, managing director of local law firm Gillan & Veldhuizen, says: “Not only has mediation proved to be cost-effective but, more importantly, it is less destructive and more fair, with speedier resolutions being reached compared with the lengthy litigation route, which could take up to four years to finalise.”

What is mediation?

If you opt for mediation, you hire a third party who doesn’t judge the case but helps facilitate a discussion. He or she will help to limit the issues and put them in perspective to resolve the dispute.

Making use of a mediator is also often referred to as a “collaborative divorce”.

There are lots of advantages to the mediation route – it’s a fraction of the cost of a traditional court case, where each spouse retains an attorney. It’s also more confidential and can help resolve disputes between spouses who wish to split amicably.

Veldhuizen says: “In most instances, I will recommend that our clients go the mediation route, and even if the parties cannot agree and the dispute ends up in court, at least the parties involved have stronger cases, having had the bones of the issues laid out in full so the attorney will know what to prove in court, without the predictable delays and appeals common with the litigation route.”

How do you find a good mediator?

“Paramount to the success rate [of an amicable divorce] is the importance of selecting an accredited mediator with experience in the relevant sector – commercial, family, construction or corporate law – who is trained to be a good listener, and who is empathetic, objective and patient,” says Veldhuizen.

If your lawyer hasn’t already suggested mediation as a way to proceed with the divorce, you can ask your attorney to recommend one.

If they can’t suggest anyone to you, contact the Law Society of SA (lssa.org.za) or the Arbitration Foundation of Southern Africa (arbitration.co.za) for help and information.

How does it work?

In a divorce, emotions can run high and the wounded party may want to take their spouse to court as an act of revenge, but this is not always the best route.

A mediator, who is usually a lawyer, will help to establish a more amicable agreement. The mediator may also be aided by parenting coaches, therapists, divorce coaches or financial specialists.

The process is voluntary and any party may withdraw at any time.

“Few divorces see the inside of a courtroom because not many people have the money for an opposed divorce trial. Ultimately, 99% resolve on settlement. It begs the question that, if the process generally heads towards a settlement anyway, why don’t more people hire a mediator to get to the same point?”

The process works as follows:

  • A mediator is appointed and a participation agreement is drawn up. This is something both parties sign to agree that they will settle without going to court. The parties agree to a venue where the arbitrations will be heard, the costs will be outlined and the time and dates for the meetings will be set.
  • Once the parties meet, the rules of engagement will also be set.
  • Each party will make an opening statement.
  • After this, the mediator will facilitate an open, honest discussion between the parties to reach an amicable agreement.
  • After the meeting has been conducted, the parties are able to give their opinion and feedback in private to the appointed mediator.
  • Once an agreement has been ironed out, a settlement is prepared for approval by both parties.

Mediation can help you to divorce with dignity, but it requires both parties to agree to the whole process. You can’t force someone to engage in a mediation process.

“The mediation process is focused on problem-solving techniques and not ‘winning versus losing’, and usually leads to better relationships and outcomes for everyone, so it is well worth considering,” adds Veldhuizen.

If both parties can’t agree on a way forward, going to court is still an option.

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December 17 2017