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Dr Ilze Van der Merwe
B.A. (Psych) (RAU) B.A Honn (Psych)(RAU) M.A. Research Pysch (Cum Laude)(RAU) M.A. Couns. Psych (Cum Laude)(RAU) D.Litt et Phil.(RAU)
Divorce Attorney Cape Town
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Divorce Mediation

It is a sad and unfortunate step when a marriage or long term romantic partnership ends.  The statistics indicate that this phenomenon is very much part of our daily modern lives.  It is even more unfortunate that such a painful experience is often exacerbated by the process of litigation.  A win/ lose situation is created where conflict is not contained, but often fuelled and where children are not acknowledged and their voices are not heard.  Litigation is an adversarial in nature and divorce is caught up within this process.

It is in this atmosphere that Mediation offers a different route to a new dispensation.  Mediation does not work within a conflict model, it aims to find solutions and contain conflict in the midst of turmoil.  Most importantly Mediation establishes a framework where parents can focus on the needs of their children and learn to negotiate and plan towards meeting the best interest of their children.  

In short Divorce Mediation is a process where disagreements or disputes over various issues in the process of divorce are resolved through the mediation of a neutral third party (a Mediator).  It takes place in an atmosphere of negotiation towards a solution and mutually beneficial outcome. 

Mediation is especially suitable when couples:

  • split up, divorce, re-negotiate an agreement,
  • resolve a dispute regarding a Parenting Plan, or setting up a Parenting Plan
  • negotiate Custody, Access, Maintenance, and/or
  • need to divide assets 

Why would one choose Mediation?

  • You save time and money: the couple and mediator negotiate together in a session, and fees can be split between the parties.
  • It gives freedom of decision making: the couple formulates an agreement without the court making decisions on their behalf: they are in more control of planning their own future.
  • The sessions are without prejudice and confidential, and most importantly:
  • the Best Interest of the Child is seen as paramount in Mediation.
  • Mediators are specialists trained to take into account the best interest of the child and assist the parents in formulating a child-focused parenting plan.
  • The process is made understandable and both parties are heard & acknowledged, open communication is created that focuses towards positive future co-parenting.

Mediation can exist in tandem to the legal fraternity.  In Mediation it is strongly advised that each participant has at least one session with their own legal representative to peruse the draft agreement and approve that the party’s best interest was taken into account.  The mediator can guide and provide expert input when compiling a Parenting Plan, this can be done even after litigation has commenced.  In fact it is paramount to involve Mediators in setting up Parenting Plan; they are usually trained in assessing the voice of the child in such a way as to provide valuable input toward the content of a workable Parenting Plan.  

The role of the Mediator is to facilitate discussion and understanding around conflicting issues in order to reach mutually acceptable solutions and agreements.

  • The Mediator can provide information pertaining to the Law, Parenting & Financial Issues (When called for there may be a Co-Mediator present to secure high quality specialised mediation)
  • The Mediator is trained and accredited by FAMAC and has experience in various issues of Mediation, Law and Psychology specifically pertaining to children and families.  Mediators can be Psychologists and Social Work practitioners trained in the basic principles of Family Law and are often involved in Forensic work regarding care and contact assessments and well versed in the needs and pitfalls of Parenting Plans. 

Remember that Mediation can only be successful when both parties are willing to participate and commit to attend all the sessions and negotiate toward a solution.  Mediation is usually not advised where extreme family violence and power imbalances are concerned.

When you do choose to partake in this process the following steps apply:

Usually a 30 minute free informative consultation is offered for you to meet with the Mediator and discuss any uncertainty regarding the Mediation process.

  • The Mediator will send you all the needed information and Biographical forms to complete prior to the session.
  • A Mediation sessions is usually a minimum of 90 minutes in length
  • The Mediation process can take three to six sessions (depending on the level of complexity and quality of participation of each party)
  • Fees are calculated per session and paid prior to the sessions
  • During the Mediation Process a Summary will be drafted
  • After both parties are in agreement of the outcome, the Summary is converted into an Agreement of Settlement by an attorney or through the Family Advocate.  This will become an Order of Court
  • It is advisable that each party consult at least once with an attorney to ensure their legal rights have been protected in the agreement.

The aim of mediation is to grant parties the empowerment to stay on board as parents after divorce and partake in their children’s future without the obstacle of the debris of Divorce, thus enabling them to fulfil their parental tasks and to fully address the needs of their children.