To mediate or not to mediate in divorce proceedings?
By Pamela Orelowitz, Senior Associate, Accredited Mediator
There are numerous judgments where the Courts during divorce proceedings, have condemned the parties, or their attorneys, for failure to consider mediation as a dispute resolution mechanism - however, in the past there was not a specific Court Rule to this effect. A significant change came into effect as of the 9th of March 2020. The High Court Uniform Rules were amended to incorporate the much-desired Rule 41A, which paves the way for parties to at least consider mediation when embarking upon litigation, whether through action proceedings or motion proceedings.
Rule 41A of the Uniform Rules of Court
In a nutshell, without delving into Rule 41A at length, in terms of sub rule 2(a), a notice agreeing to or opposing mediation needs to be served on the other party when the action or application commences. Further, in terms of sub-rule 2(b) the Defendant is required to also serve a notice in terms of Rule 41A on the Plaintiff/Applicant when serving an appearance to defend or notice to oppose (or any time thereafter, but not later than the delivery of a plea) in terms whereof the Defendant indicates his/her agreement to, or opposition to, referral of the dispute to mediation.
The notices referred to above are in accordance with Form 27 of the First Schedule, and needs to set out reasons for such parties’ belief whether or not the dispute is capable of being mediated. It further needs to be noted that the parties may at any stage before judgment, agree to refer the dispute between them to mediation provided that where a trial has commenced, the consent of the court is required.
Supporters of alternate dispute resolution who have long sought a better forum for family law disputes see this amendment to the Rules as a very positive move in the right direction in our legal system because there are so many advantages to mediation, as opposed to a high-conflict litigious divorce, especially when minor children are concerned.
What is mediation
Mediation is a without prejudice, informal, voluntary process, in which an impartial and qualified person, the mediator, assists the parties in a joint session to resolve their disputes by identifying their issues upon which agreement needs to be reached. The mediator cannot be the attorney of one of the parties, as the mediator is an independent party in the process. Once the issues are identified, the mediator will facilitate a meaningful discussion between the parties, and assist the parties to investigate possible solutions, and ultimately reach an amicable and practical resolution to the issues at hand.
Once having heard the parties, it needs to be noted that one of the skills that the mediator should possess is to make a determination as to when mediation is inappropriate under the parties’ circumstances.
Benefits of mediation
Mediation focuses on solutions, and reality-tests the possible solutions. It is less hostile, more cost effective and has a shorter duration than going to Court. The needs and personal circumstances of both parties are taken into account, and it encourages preservation of the existing relationship between the parties, which is vitally imperative, especially if minor children are involved. The parties are actively involved in their divorce process and are in control of the outcome. Most importantly, there is a significant focus on the best interests of the minor children, throughout the mediation process.
Finalising the divorce
Once the parties have agreed on all the terms of their divorce, a written settlement agreement is compiled to record the terms and clearly sets out each party’s rights and obligations towards each other, and those of the minor children. When the parties have minor children, a parenting plan needs to be incorporated in the settlement agreement. The settlement agreement is then signed by the parties.
The court is still necessary to finalise the divorce in order to grant the divorce order. As there is a signed settlement agreement, the divorce will be heard on an unopposed (‘uncontested’) basis. The signed settlement agreement will be made an order of court, in conjunction with the divorce order.
Even though the practical implementation of the new Rule 41A is still being tested, we would very much encourage our clients to consider mediation, where appropriate, and litigate only as a last resort, in the hope that the more amicable the divorce is, the better the parent’s will co-parent in the best interest of the children.
Spence Attorneys can assist you with family law mediation. Contact Pamela Orelowitz, via email at firstname.lastname@example.org for any enquiries and assistance with mediation or if you are about to embark on the divorce process.
DISCLAIMER: The above should not be construed as legal advice, nor substituted for legal advice or acted upon, and it may contain errors and/or omissions. Always seek legal advice from an attorney. Spence Attorneys and/or Pamela Orelowitz will not be held liable for any person acting and/or failing to act on the information contained herein.