Divorce Mediation
Divorce is not just a legal procedure. It is a deeply personal and emotional process as well.
During mediation, I focus on both and not just the legal procedures.
Options for Divorce
For a couple to divorce, they must sign a Divorce Settlement Agreement where they agree on essential matters like the Division of assets, Maintenance, and a Parenting plan for the children.
To do that, they have two options:
Court divorce
- Each party appoints an attorney.
- Both parties appear in court over several months.
- The court decides on the division of assets.
- The court decides on the maintenance.
- The court decides on a parenting plan for the children.
- Each party pays substantial legal fees.
Takes 1 to 4 years to finalise due to court backlogs.
Mediated divorce
- Both parties appoint the same mediator.
- They attend mediation sessions over several days.
- They decide on the division of assets.
- They decide on the maintenance.
- They decide on a parenting plan for the children.
- They share the fees (less than 20% of legal fees).
Takes 6 to 8 weeks to finalise due to preferential court dates.
Contested Divorce
Each party appoints their own attorney, and the court decides on the settlement agreement. The parties have no influence on the division of assets, the spousal maintenance, or the parenting plan (child maintenance and visitation rights). Everything depends on the legal arguments of their attorneys and the court’s decision.
Uncontested Divorce
The parties reach a settlement agreement by sharing a divorce mediator. The mediator assists the parties in negotiating the division of assets, the spousal maintenance, and the parenting plan by themselves.
Both options lead to an official divorce. The difference is that appointing attorneys is much more expensive than appointing a mediator. Moreover, contested (litigated) divorces can take years to finalise, depending on the court’s backlog. In contrast, uncontested (mediated) divorces take a fraction of the time due to preferential court dates for mediated divorces.
The Role of the Mediator
Mediators meet with the parties in mediation sessions and provide legal information (not legal advice) on the division of assets, spousal and child maintenance, and a parenting plan for the children.
They actively participate in the negotiations, de-escalate the conflict, and assist the parties in reaching an agreement. They then draw up the legal documents for the parties to sign and submit to the court.
Section 10 of the Children’s Act 38 of 2005 states that minor children have the right to participate in decisions about them in a divorce. Mediators use trained experts like psychologists and social workers to complete a Voice of the Child form, which is submitted to The Office of the Family Advocate with the parenting plan.
All mediation sessions are highly confidential, and mediators always stay neutral and without conflict of interest.
The Office of the Family Advocate
The Family Advocate is a legal officer employed by the Department of Justice and acts as a legal representative for children. All parenting plans registered with the Office of the Family Advocate have the same legal effect as a court order.
Role of the Family Advocate:
- Audit all mediated parenting plans.
- Approach the court if the parenting plan is not in the child’s best interest.
- Approach the court if the intention is to place young children with anyone other than the mother.
- Approach the court if the intention is to place children with anyone other than the parents.
- Approach the court if the intention is to separate siblings.
Mediation Models
Low-conflict divorces
- Consists of one individual session each, followed by a joint session to sign the divorce settlement agreement.
- This is for couples who agree on almost all divorce matters and are mostly ready to sign the divorce settlement agreement.
High-conflict divorces
- Consists of one individual session each, followed by a joint session, and then repeated until the parties are ready to sign the divorce settlement agreement.
- This is for couples who disagree on most or all divorce matters.
Divorce Mediation Benefits
Avoid most court officialities
Appointing attorneys and going to court can be frustrating and tedious. The parties must meet with their attorneys multiple times, appear in court, and be cross-examined.
Mediation helps you settle your divorce effortlessly. The parties appoint one mediator who assists them in negotiating a settlement agreement, and only the plaintiff appears in court once to have a divorce decree issued.
Save thousands of rands
A court divorce costs hundreds of thousands of rands in legal fees.
In reality, most court divorces last until the first party runs out of money. It then becomes an uncontested divorce, favouring the party with the most money.
Mediation fees are less than 20% of legal fees.
Save time
A court divorce takes several years to finalise because of court backlogs.
Conversely, a mediated divorce has preferential court dates and takes a couple of weeks to finalise.
Keep it civil
Although the parties might not want contact post divorce, they still must if minor children are involved.
Mediators are trained in conflict resolution to ensure less conflict during and after divorce for the children’s sake.
Stay in control of the divorce
In mediated divorces, the parties, rather than the court, decide on the divorce settlement agreement.
This agreement includes a parenting plan for the children and outlines how the division of assets and spousal maintenance are calculated in the divorce.
Common misconceptions
- Divorce mediation is not marriage counselling
- Divorce mediation is not therapy
- The mediator is not a hired gun
