Academics, lawyers, courts and legislatures have shown support for alternatives to litigation-based resolution of family disputes. Alternative dispute resolution methods aim to create a suitable atmosphere for parties to attempt to resolve their disputes by adopting processes that allow them to engage meaningfully with each other. Recently, there have been unprecedented efforts to develop strategies aimed at more efficient, less costly and more satisfying resolution of family conflicts, including more extensive and appropriate use of various alternative dispute resolution approaches.

Our courts are increasingly stressing the importance of mediation, especially in divorce matters. Where parties have refused to mediate, our courts have displayed their distaste for such conduct by awarding cost orders against the offending party, including the parties’ attorney, where the attorneys did not refer the parties to mediation.

Furthermore, the Children’s Act, besides providing for an approach which is conducive to conciliation and problem-solving, and which avoids confrontation and delays, specifically refers to mediation as a port-of-call prior to litigation being instituted. Upon, or after divorce, section 33(2) read with section 33(5) makes it clear that parties may not approach the court for the resolution of their parenting disputes as a first resort. The objective of this is that they seek the intervention of a mediator or neutral third party to assist them in resolving the issues between them. Mediation must therefore first be attended.

Additionally, in terms of section 4 of the Mediation in Certain Divorce Matters Act, parties may, before being granted a divorce order, be ordered to submit to limited court-connected mediation by the office of the family advocate.

Other legislation which makes provision for mediation generally and, accordingly, applies to divorce and other family matters, are the Short Process Courts and Mediation in Certain Civil Cases Act, 103 of 1991, and the Uniform Rules of Court. Very importantly, the recently introduced court-annexed Mediation Rules of the Magistrates’ Courts makes provision for voluntary mediation in all civil matters in the Magistrates’ Courts, including the regional courts, where divorces can be heard in terms of the Jurisdiction of Regional Courts Amendment Act, 31 of 2008.

Why mediate?
Owing to the emotional and psychological trauma suffered during separation, most family members are ill-equipped to deal with negotiating issues relating to their separation, including the care of and contact with children, which can lead to ever-increasing levels of acrimony between parties and, consequently, further suffering, especially by any children. The current adversarial legal process often exacerbates the problems inherent in separation and divorce. Through mediation, meaningful negotiation between the parties is achieved by soothing the emotions of the parties and assisting them to put matters into perspective.

A mediator, who is an impartial third party with no decision-making powers, can assist the parties to isolate the disputes in issue methodically, to engender different options for resolving such disputes and seek possible alternative options, and, finally, to reach an agreement suitable to the needs of all parties concerned. Mediation, furthermore, is adaptable to different cultural value systems and/or religious beliefs and can accordingly afford people from all cultural backgrounds, including children, the opportunity of playing a meaningful role in the divorce process.

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