Why the “third way” might be the best option
If you are contemplating divorce, you may be wondering what the process involves. In South Africa, there are three types of divorce: contested, uncontested and mediated. Mediation benefits can keep disputes out of court.
Uncontested divorce is the quickest and least expensive option. The spouses work together to agree divorce terms, including maintenance, division of assets, child care and contact, and other important decisions. Uncontested divorce proceedings may be finalised in a matter of weeks. However, even the most amicable of partings can become embroiled in conflict as emotions take their toll.
When spouses cannot agree the terms and conditions of their divorce, the divorce may be contested. In a contested divorce both spouses appear in court, often repeatedly, and the court decides the terms of the divorce. This can result in high legal costs and considerable emotional distress, and can drag on for years.
There is a third way – the mediated divorce. Mediated divorces cost more and take longer than uncontested divorce but are generally resolved much more quickly and with less pain than a contested divorce. Couples who are unable to agree a divorce settlement work with a professional mediator to negotiate and reach agreement. At this point the attorneys can draft the official settlement agreement, which is signed by both spouses and made an order of the court. A mediated divorce is often finalised in three months and costs less than a contested divorce.
Why might mediation be the solution, particularly in high-stakes divorce?
Mediation benefits explained
Divorce mediation offers an alternative method to dispute resolution without protracted litigation. It allows spouses to resolve disputes privately, with the assistance of a neutral third party. The mediator’s role is to facilitate discussions and assist the spouses in reaching mutually agreeable terms. Mediation is a voluntary process and requires the consent of both parties. Unlike arbitration, mediators do not have the authority to make decisions. They simply allow the process to take place in a more collaborative manner, thus enabling a less adversarial and combative process.
Cost efficiency
One of the most significant advantages of mediation is its cost-effectiveness. Conventional litigation can be extremely expensive, with legal and other professional fees quickly adding up. Mediation tends to be more affordable as it is a quicker process over which the spouses have more control.
Time-saving
Contested divorces can take months or even years to resolve, especially in matters involving complex financial or child care and contact disputes. Mediation can significantly reduce this timeline and the process is far more convenient, as it allows the couple to schedule sessions based on their availability. The pair can, to a certain extent, control the pace at which the mediation takes place and thereby reduce costs. By reaching agreement before proceeding to litigation, spouses can expedite the process and reduce costs.
Privacy and confidentiality
Mediation ensures that sensitive and privileged information remains confidential, protecting both spouses’ privacy. By contrast, court proceedings typically involve several parties reviewing confidential information. The divorce hearing can be public under certain circumstances, resulting in private matters becoming part of public record and precedence.
Confidentiality is particularly important in high-stakes divorces, where financial and personal details can be highly sensitive. Instead of sharing personal information with attorneys and a judge, the information can be shared solely between the parties and mediator to arrive at a solution.
Preserving relationships
Mediation maintains respect and cooperation between spouses who are engaged in divorce proceedings, which is particularly important where children are involved. It allows parents to agree a parenting plan and settlement agreement that addresses their specific concerns and the wellbeing of their children.
Mediation reduces the adversarial nature of divorce and allows both parents to have a say in how they will co-parent post-divorce. The process tends to be less acrimonious because the mediator will help spouses manage emotional stress, maintain an amicable relationship and ensure their children’s best interests are protected throughout the process.
Customised solutions
In certain scenarios the court may strictly apply legislation and precedent to a matter, whereas mediation enables divorcing spouses to be creative and agree solutions best suited to their needs.
For example, where a couple is married in community of property and a division of assets and liabilities needs to take place, they can agree to fair distribution of the assets and liabilities they have accumulated over the duration of their marriage.
During mediation, the mediator assists the spouses to identify their respective issues and needs, express concerns and explore possible resolutions or reach a middle ground. This approach allows for flexibility and creativity in agreements, which can be particularly beneficial in complex matters where substantial assets or business interests are at stake.
Empowerment and control
Mediation empowers both spouses to take control of the divorce process as well as the eventual outcome, which allows both individuals to feel more satisfied with the final terms, especially where child care and asset division are concerned. They are not subject to decisions made for them by a stranger (i.e., a judge or magistrate).
Mediation also eliminates the possibility of power imbalance, where one spouse is more domineering than the other. The mediator facilitates fair and equal representation of interests.
Using mediation benefits appropriately
While mediation offers numerous benefits, it is not suitable for all divorces. It may not be effective if there is a history of domestic abuse or a significant power imbalance in the relationship. Furthermore, if one spouse is unwilling to disclose financial information transparently, reaching a fair agreement can be challenging.
Despite these limitations, mediation remains a valuable alternative for many divorcing spouses and allows for a more amicable, cost-effective and empowering way to navigate the complexities of divorce.
Cape Town family lawyer can help
If you are considering divorce and need legal advice, talk to our divorce attorneys. We’ll work with you on the way forward, and if a mediated divorce is right for you, we can recommend a mediator. At SD Law we are known for our EQ and our sensitive approach to family law. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a discussion in complete confidence.
For more detailed information on how to get a divorce, download our Guide to Divorce.
Further reading:
Divorce Attorney Cape Town
http://divorceattorneycapetown.co.za/The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.