WHAT IS THE MEDIATION PROCESS?
Although the process of mediation is meant to be informal, parties may choose to have their attorneys present. It is advisable that only the parties and mediator 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 obviously 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, in the event that 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 with respect to their children. When the children are still minors or dependent on their parents’ 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.