SPECIALIST DIVORCE MEDIATION LAWYERS IN SOUTH AFRICA
MEDIATING TOWARD A SETTLEMENT AGREEMENT IN A DIVORCE
Family law and divorces, in particular, often involve a couple’s child(ren), which consequently makes the nature of the matters just as acrimonious, if not more, than matters between other litigants. Due to the inherently emotional nature of a divorce, a softer touch from the legal representatives dealing with these matters is often required. This is especially true if the divorcing parties share children and will therefore have to cooperate and be in each other’s lives, to a greater or lesser degree, for years to come.
Unfortunately, by the time spouses take their divorce matter to an attorney, they are often already at a point where they are not talking to each other, which is where mediation plays a vital role.
WHAT IS DIVORCE MEDIATION?
Mediation is defined as “a voluntary process entered into by agreement between the parties to a dispute in which an impartial and independent person (the mediator) assists the parties to either:
- resolve the dispute between them, or
- identify the issues upon which an agreement can be reached, or
- explore areas of compromise, or
- generate options to resolve disputes, or
- clarify priorities,
by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.”
It is important to note that how the mediation process should be conducted is not prescribed by law and can be determined by the parties involved. Mediation is also a voluntary dispute resolution process, although this element may be disputed given that the courts are increasingly making it a requirement.
TYPES OF DIVORCE IN SOUTH AFRICA
Uncontested or Unopposed Divorce
If the relationship between you and your spouse is amicable and you have already decided on the terms of your settlement agreement, the process of an uncontested divorce is a lot faster and simpler than in the case of an opposed divorce.
One of our attorneys specialising in Family Law will draft the settlement agreement to ensure that it is in terms of the Divorce Act and the court’s requirements. If there are minor children born from the marriage, the settlement agreement needs to be endorsed by the offices of the Family Advocate to determine the best interest of the minor children.
Contested or Opposed Divorce
Should the parties be unable or unwilling to reach a settlement agreement, the divorce will proceed on an opposed/contested basis. Each party required an attorney.
The important aspect when deciding to divorce is the fact that you must feel comfortable with the attorney you decide on. You must trust, respect, and be aware of the experience the chosen attorney has to take your case to trial in a contested divorce.
WHAT IS THE MEDIATION PROCESS?
Although the process of mediation is meant to be informal, parties may choose to have their attorneys present. Only the parties and mediator should attend the first session to see whether an amicable settlement can be reached before incurring unnecessary legal costs.
A mediator will assist parties by facilitating the process of mediation, enabling them to resolve their dispute and reach a solution that they can both agree to. During mediation, the mediator, the parties, and each of their attorneys, if requested, are gathered around a table where they actively work towards identifying and analysing the various issues in the dispute, investigating possible solutions, and ultimately reaching an amicable and practical solution to these issues. Reaching an amicable solution during mediation is of the utmost importance as the outcome is not binding on the parties, which means the success of the agreement reached is wholly dependent on both parties’ compliance. If the parties feel that they had a large role in creating the solutions reached, they are more likely to accept and abide by them. Once the parties agree to the terms and conditions, a settlement agreement incorporating the same can be drafted and made an Order of Court, which will be binding on both parties.
It is also important to note that mediation is held “without prejudice,” so if mediation fails, the contents of the discussions are confidential and may not be revealed to the Court.
WHAT HAPPENS AFTER THE PARTIES TO A MEDIATION AGREE?
The goal of effective mediation is to allow the parties to a divorce to reach a mutually acceptable solution, as it is quicker, easier, and cheaper for both parties involved. If a mutually acceptable solution is reached through mediation, it may be concluded by drafting a settlement agreement, which can be signed and made an Order of Court along with the decree of divorce.
This Settlement Agreement records the terms of the divorce and sets out each party’s rights and obligations towards each other, as well as their rights and obligations concerning their children. When the children are still minors or dependent on their parent’s financial support, a parenting plan will also be incorporated into the settlement agreement.
WHAT ARE THE ADVANTAGES OF DIVORCING WITH A SETTLEMENT AGREEMENT IN PLACE?
The benefit of having a settlement agreement in place is that the matter can be heard on an unopposed (uncontested) basis, as the parties agreed to their terms beforehand, so there is no uncertainty regarding what a judge or magistrate may ultimately determine to be a fair solution. A negotiated settlement is also the best option for preserving or saving the relationship between the parties, which is particularly important in family law matters. Perhaps the most compelling argument in favour of this approach is that it results in a speedier resolution of the matter and, thus, reduced legal costs.
South African courts are also very much in favour of this approach, as it makes their tasks easier and frees up time and space on the already congested court rolls, which results in enhanced access to justice for all. Unfortunately, not all litigants (or, indeed, their representatives) are prepared to approach these matters cooperatively, which is where Uniform Rule 41A comes into play.
WHAT IS UNIFORM RULE 41A?
Rule 41A was formulated by the Rules Board to address backlogs in the finalisation of matters in the High Court and has become the new standard throughout the South African Court system.
Rule 41A, which was introduced on 9 March 2020, requires parties involved in matters in the High Court to consider mediation at the earliest stages of the litigation process and declare whether they have considered mediation before approaching the Court. The attorneys of parties involved in matters in the High Court are also required to confirm whether they have advised their clients to seek mediation before approaching the court. To ensure that litigants and their representatives don’t merely pay lip service to this requirement, Rule 411A requires that parties who believe that mediation will not assist them in resolving their dispute submit a notice that states whether or not each party was amenable to resolving the matter by way of mediation. This notice must also set out the reasons for the parties’ belief that the dispute is not capable of, or suitable for, mediation.
Rule 41A also allows either one or both parties to refer the dispute to mediation at any stage of the legal process before judgement is handed down.
In terms of sub-Rule 41(8)(b), if the parties to a divorce agree to mediation, they are required to furnish a joint minute after the mediation, setting out whether the mediation was successful and, if so, whether the matter has been settled in full or only partially. If a partial settlement was reached through mediation, the joint minutes must also indicate the issues that have been resolved as well as the issues left unresolved, so that they can be determined by the court.
HOW DOES RULE 41A WORK IN PRACTICE?
Unfortunately, many legal representatives have failed to adhere to Rule 41A in practice by either neglecting to inform their clients of the Court’s requirements in this regard or even falsely claiming to have followed the rule when, in fact, they hadn’t. The recommended manner in which parties should approach mediation in the pre-litigation phase of a dispute has differed over the years. However, courts are now becoming increasingly stringent about enforcing Rule 41A, and, in doing so, they may reach a point where a party’s failure to comply with the Rule will result in the Court refusing to hear the matter. Nowadays, courts are indicating their displeasure with non-compliant litigants and their representatives, which is reflected in cost orders for failure to comply with Rule 41A.
HOW ARE COST ORDERS AFFECTED BY RULE 41A?
There are numerous judgements where courts hearing divorce matters have condemned the parties or their legal representatives for their failure to consider mediation as a dispute resolution mechanism before approaching the court. The most well-known case in this regard is Brownlee vs. Brownlee (case no. 2008/25274), where both legal representatives were penalised and had their fees capped due to their failure to inform their clients that mediation could resolve their matter sooner and at a lower cost. Similarly, in the unreported case of Koetsioe and Others vs. Minister of Defence and Military Veterans and Others (case no. 12096/2021), where the Rule was simply disregarded by the parties, the court refused to make any order as to costs, stating that “the costs of the application might well have been avoided by mediation in the same fashion as many of the previous aspects of occupation or relocation have been dealt with.”.
IS MEDIATION ALSO COMPULSORY IN THE MAGISTRATES COURT?
Rules 70 to 79 of the Rules regulating the Conduct of Proceedings of Magistrate’s Courts were amended as of 9 June 2023 to make provision for mediation as an option for parties involved in civil litigation in the Magistrates Court.
While this amendment did not make it compulsory for the parties to pursue mediation, the same principles set out above would apply to litigating parties. The party instituting the action or launching the application would need to serve a notice indicating whether they are amenable to attempting to mediate the matter, and the opposing party would agree to or oppose the referral of the matter to mediation. The parties are essentially requested to provide reasons for their view as to whether the matter is capable of being mediated or not.
An attempt at mediation is an important first step in any matter, especially family law matters, and should not simply be ignored or paid lip service to. If the parties can work with their attorneys to reach an amicable solution to their disputes and both parties commit to abiding by the agreement, the outcome will be in the best interests of both parties and, most importantly, their children.
If you need help with mediating your matter or preparing a settlement agreement, please do not hesitate to contact one of Burger Huyser Attorneys’ mediation attorneys for assistance.
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Choose Burger Huyser Attorneys as we have gained vast experience in dealing with divorce over the years. We pride ourselves on delivering a discreet and confidential service, whilst ensuring you obtain the best possible outcome for your welfare and future.
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