Must divorcing parties attempt to mediate their dispute?

Mediation assists both parties in working out arrangements for themselves and their children instead of handing over control of their affairs to a court.

The process reduces conflict by helping couples consider the issues that need to be settled and the various options for settlement that may be available to them. It helps couples work toward financial settlements and focus on children’s feelings and needs, encouraging parental cooperation wherever possible.

It is trite that a consensus-seeking process rather than adversarial proceedings result in a saving of both time and legal costs.

It is an unfortunate and sad fact, as was pointed out by judge Blieden in Clemson v Clemson [2000] 1 All SA 622 (W), that “divorce proceedings are normally traumatic events for those directly affected by them” and that the court “expects attorneys acting for their clients as professional people and officers of the court, to display objectivity and sound common sense in assisting their clients. Fortunately most attorneys perform this task admirably. However there is a minority of attorneys who approach each divorce as a war between the two litigants. The rules of court and legal principles are utilised as weapons in a fight to destroy the opposition. As happens in most wars of attrition, by the time the war has come to an end both sides have lost. There is now permanent hatred between the parties and their joint assets have been consumed to pay legal fees”. 

The judge president has recognised this trend and in terms of 6.12 of the Practice Manual (Gauteng Local Division: Johannesburg) dated October 2018, has directed that parties are to seriously consider whether mediation would better serve the interests of the parties (my italics).

There is no statute obliging divorcing parties to mediate. However, three cases have dealt with the importance of mediation in family law matters.

In 2003, in Van den Berg v Le Roux, Judge Kgomo ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter and ordered that only subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute.

In 2004, in Townsend-Turner and another v Morrow the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy’s maternal grandmother. The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access. The court ordered that the mediation had to commence within two weeks of the granting of the order that it should continue for a period of at least three months or for the duration of at least four mediation sessions. The parties were also ordered to share equally the costs of the mediation.

In 2009, acting Judge Brassey in Brownlee v Brownlee (2008/25274) found that disputing parties had a duty to attempt to mediate the dispute and that the opposing attorneys should have encouraged mediation. The judgment emphasised the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to attempt mediation at an early stage and to avoid the delays and expense of running a trial. Normally an unsuccessful litigant pays the costs of the successful one. Judge Brassey expressed his disapproval of the parties’ conduct and made each party bear their own costs.

The Brownlee case puts parties and their legal team at risk if they do not attempt to mediate the divorce dispute at an early stage.

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