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The New Mediation Rule in Divorce Proceedings

Mediation is an alternative dispute resolution mechanism that focuses on solutions to bring about settlements of disputes between parties. The parties appoint an independent qualified mediator with a view to negotiate and settle a matter. The advantage of mediation is that it can end drawn-out court battles and save on legal costs that accumulate during lengthy litigation between opponents. Mediation can also be employed prior to commencing litigation which will drastically reduce the cost of getting divorced and minimise the emotional toll that litigation can produce for all parties involved.


RULE 41A AND THE OBLIGATION TO MEDIATE

As of 9 March 2020, in all litigation matters the parties to the dispute are now required to consider mediation in terms of Uniform Rule41A of the High Court. This means that any person instituting an action or application against another person in court must serve a notice with the summons or application indicating whether he/she agrees to or opposes the referral of the dispute for mediation. The Defendant is in turn also required to serve notice on the Plaintiff indicating whether he/she agrees or opposes the referral of the matter to mediation.


Note that Rule 41A does not make mediation compulsory - it just requires the parties to consider mediation as an alternative to the litigation process. The parties are required to state in the notice, their reasons for either agreeing to or opposing mediation. Should the parties not agree to mediation the litigation process will continue, however the parties may at any time during the litigation process agree to mediation. Should the parties agree to mediation their decision is recorded in a joint minute and on signature thereof the time frames to deliver pleadings shall be suspended during the mediation process which must be concluded within 30 days after the date of signature or as the court grants extension in respect thereof. Once the mediation process has been completed the settlement agreement is drafted and made an order of court which brings the dispute to an end.


Mediation is particularly useful in divorce and family matters, as it places the husband and wife in control of the process. The mediator may not force the parties to agree to anything nor may the mediator render a decision for the parties and therefore everything that is settled on has been agreed by the parties themselves. This process empowers the parties themselves to settle their own disputes in an amicable manner and the advantages of settling divorce and family matters through mediation far outweigh years of fighting in court only for the court to solely decide your fate concerning your finances and children. Through mediation the parties have the power to decide how their divorce will be finalised and are therefore authors of the court order to that effect.


The trained mediator is completely neutral and will hear both parties equally and may not take sides, thereby rendering a service that is balanced and fair. The parties are assisted by the mediator to find practical and legal solutions so settle a matter and facilitates the move forward particularly if there are children involved. If there are children it is inevitable that there will be co-parenting between the parties in the future and furthermore, it is in the best interest of the children to find an amenable way in which to co-parent in the future.


It is important to note that the purpose and outcome of mediation is not to reconcile the parties and it is not a form of couples counselling. The purpose and outcome of mediation is for the parties to agree to a settlement they themselves have agreed upon, involving their financials and their children. The process of negotiation and communication expedites the process and brings the dispute to an end. Although mediation can be conducted prior to instituting divorce proceedings which will greatly reduce the cost of a divorce, it can be entered into at any point in the litigation process with the purpose to settle a matter.


Once mediation has been concluded and the parties have reached a settlement agreement in respect of their financials, assets and liabilities and have agreed on a parenting plan (if applicable), the agreement will be signed by both parties. Thereafter, if there are children involved, it must be approved and endorsed by the Office of the Family Advocate. The settlement agreement will be made an order of court on the day that the parties divorce and is therefore fully enforceable. Another advantage of mediation is that since the parties agreed to what the court ordered in respect of their divorce the parties usually adhere to their agreement, reducing the probability of future litigation to enforce the court order.


If you need a divorce, arrange a consultation with us to discuss your options. We offer mediation services as well as divorce litigation expertise. Contact us at reception@mayberyinc.co.za or (012) 004 1296.

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