The role of mediation in divorce


A mediated divorce can save a lot of pain…and money

If you are contemplating divorce, you may have questions about the divorce process. Should you and your spouse share a lawyer or should you have individual representation? Do you have to go to court? What is an “online divorce”? Divorce is a complex unravelling of a legal contract, made more problematic by the fact that emotions and life choices are involved – and often children. If you’ve never been through it before (and most haven’t), it’s understandable to find the terminology confusing and the process daunting. Facing your spouse across a courtroom is a frightening prospect, but if you are at loggerheads with each other and unable to work things out amicably, you may think this is the only option. It’s not. There is a third way – a mediated divorce. What exactly is mediation and what is the role of mediation in divorce?

What is mediation?

Mediation is a process in which couples work through their differences with a trained and accredited mediator to reach agreement on issues in their divorce, such as how to split assets or make child care arrangements, rather than letting a judge decide for them. The mediator is a neutral third party who can help the couple draft a settlement agreement, which can then be reviewed by both attorneys. Mediation does not replace legal counsel. It’s important to seek legal advice in advance of mediation, to be sure you know your legal rights. Mediation can save a lot of time and cost by enabling you to avoid court (a contested divorce) and by cuting down on a lot of “to-ing and fro-ing” between lawyers to work out a settlement.

Is mediation a legal requirement?

In South Africa, mediation is not a legal requirement but is an option in the divorce process. It is the middle ground between an uncontested divorce, where couples cordially work out the terms of the divorce together, and a contested divorce, settled in a court of law.

Interestingly, in England and Wales the Justice Secretary has just announced plans to enforce mediation for separating families, except where there is a history of domestic violence. This will only apply to separating couples with children, who will have to attempt to agree their child custody and financial arrangements through a qualified mediator before resorting to court action. Divorcing couples without children are not included in the legislation. It is intended to ease pressure on the family courts and reduce backlogs, but there are also benefits for the families involved: The Justice Secretary said, “When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.” For now, in South Africa you cannot be required to seek mediation, but we strongly advise it if you are unable to reach agreement with your spouse.

Benefits of mediation

More communication, less finger-pointing

Mediation has obvious advantages for divorcing parents, but everyone can benefit from mediation. Mediation enables you and your spouse to have a meaningful conversation about the important matters in your divorce, without blame and recrimination. Mediators are skilled in conflict resolution and will prevent the discussion becoming a battleground. The mediation process will also help you build your communication skills, even if lack of communication contributed to the end of your marriage. This may be useful if you have children and will need to maintain a co-parenting relationship after the divorce. Children suffer if their parents can’t have a civil conversation, even once the confusion of the divorce is over.


The only winners if your divorce winds up in court are the divorce attorneys. A contested divorce can take months or even years to settle, and legal costs mount up. There are court costs as well. At SD Law, we always encourage couples to seek an uncontested divorce or, if that is not possible, a mediated divorce. We believe it is healthier and less traumatic to divorce with dignity and with as little emotional damage as possible. A contested divorce is always a gruelling affair. We will never encourage you to go to trial to increase our fees. A courtroom should be the absolute last resort. A mediator will cost more than sitting down with your spouse unsupported, but in the long run could save you money by enabling you to reach agreement more quickly.

There is no time limit on the mediation process. If your circumstances are particularly complex, it may take more than one meeting to thrash out the details of your divorce agreement. You can continue to mediate for as long as you, your spouse, and the mediator deem necessary. Of course, the more meetings you have, the more expensive it is. Most couples can resolve their differences with a few mediation sessions.

What mediation can’t do

The mediator is there to help you resolve issues. They are a facilitator between you and your spouse, keeping the discussion on track when emotion threatens to derail it. But the final outcome is the responsibility of you and your spouse. The mediator can’t make decisions for you, force either of you to accept a term, or insist that either of you signs a contract.

A mediator is also not a lawyer, so they can’t give you legal advice. They are not a financial adviser, so they can’t help you with choosing a retirement savings vehicle or life insurance policy. This is why it’s important to consult an attorney before mediation, and possibly a financial adviser as well, depending on your circumstances. You need to enter mediation well informed about your rights and your options. Otherwise you’ll be working out a settlement with less than full information.

Why mediation is preferable to court

Mediation is generally less stressful and less costly than a divorce trial, and takes much less time. However, while these are obvious benefits, for most couples it is preferable to going to court because you retain your agency. You and your spouse are in control of what happens. However much the two of you may disagree, if you go to trial you hand over all power to the judge, whose job it is to decide for you, because you have demonstrated that you and your spouse cannot negotiate. This judge is a stranger to you. Do you really want them to decide your future?

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 for a discussion in complete confidence.

For more detailed information on how to get a divorce, download our Guide to Divorce.

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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.

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