The benefits of mediation
Mediation can help avoid family disputes disintegrating into complicated court cases.
In South Africa, when a family-related dispute arises, the most well established way to resolve it is in court. This involves paying attorneys’ fees and having to cover large associated costs for an intricate and formal process that can often take a very long time to resolve. Many South Africans have limited finances and even fewer have the time, energy or resources to get involved in intense litigation. This often means that access to our justice system for family-related matters is a benefit reserved for the wealthy (who represent a very small percentage of our population).
Unfortunately, when people do take family disputes to court, cases tend to be backwards-looking and lawyers representing the parties often don’t manage to get matters resolved quickly, or give little attention to avoiding a negative impact on future relationships. Disputes are seen as a purely legal and the emotions and psychological vulnerabilities of the people involved are ignored. In divorce cases, whatever conflict has led a couple to think about a divorce is intensified when they step into an attorney’s office.
Another significant disadvantage of our system in South Africa is the impact that litigation has on children and extended family. In divorce cases, children often become bargaining tools for both parents and, long after the litigation has been settled, issues of access, maintenance and financial dissatisfaction from the final agreement or court order cause difficulties in families.
This points to another weakness in South Africa’s current system: it is very paternalistic. A judge decides how the division of assets, access and maintenance will be carried out, and the parties have very little to do with the overall outcome of the matter, which is typically (even in negotiated settlements) dictated by legal representatives and the judge.
Mediation as an alternative
To avoid family disputes disintegrating into complicated court cases, many experts suggest mediation as an effective alternative. Mediation in a family law environment usually takes place with just the parties (and possibly children and extended family) and mediator present. The mediator is someone who is impartial and who is trained in mediation, and they oversee the negotiations between the separating parties to help them reach a settlement agreement. During mediation, the mediator needs to refer the couple to the relevant experts for legal or psychological advice so that they can make properly informed decisions.
During private mediations, all information is treated as confidential.
Mediation is less time consuming, more cost effective and more informal than legal proceedings, and it encourages meaningful communication between the parties. This can result in less conflict and the parties having a greater say in the resolution of their legal issues. This often also leads to a better commitment to the terms of the agreement.
In cases involving children, mediation is a better way of helping make sure that children’s rights to be heard and express their views are upheld because mediation takes their best interests into account by acknowledging the existence of both emotions and legal disputes; it is not strictly a legal consideration. Ultimately, this helps to establish a better future relationship between the child’s parents in their dealings with each other.
About the author:
GILLIAN LOWNDES, Partner, Lowndes Dlamini Attorneys
Gillian is currently completing her Masters in Family Law through UNISA and working to become qualified as a mediator. Her specialities include Antenuptial Contracts, dissolution of marriage (divorce), maintenance, parenting plans and all issues pertaining to parenting rights and responsibilities, as well as issues regarding paternity.
Have you tried mediation as a way of resolving family disputes?