The most significant difference between mediation and formal legal proceedings is that instead of a presiding officer holding sole decision-making powers, you would be allowed to enter the arena and engage in various discussions and ultimately together with your (soon – to – be ex-) spouse, make the final decisions.
These decisions can relate to aspects such as the division of the marriage estate, care and contact of minor children, maintenance of minor and major dependent children and spousal maintenance.
The mediator, who would be well-versed in the legal framework regulating family law, would aim to guide the parties on the applicable laws and principles. The mediator guides instead of orders.
Successful mediation allows for the swift and cost-effective conclusion of a life event, normally portrayed as involving long, drawn-out legal battles. The parties would then normally conclude a deed of settlement, which would be made an order of the court.
An unsuccessful mediation process, on the other hand, would revert to embarking on the ‘normal’ legal route through litigation. Of importance is that the content of the mediation process would not be allowed to be disclosed to the court. Mediation attempts are therefore made without prejudice, simply put, without the court having sight of the content thereof.
The movement towards mediation has reached momentum in recent years and has made big strides in divorce proceedings. It is now compulsory that a mediation notice be prepared before formal divorce proceedings are instituted. In this notice, you must elect to agree or oppose the referral of the matter to mediation and substantiate your decision.
Mediation can be a powerful tool to preserve familial relationships despite the dissolution of marriages. The sensitivities of divorce and the involvement of children make mediation a desirable legal avenue. One must, however, have cognisance of the fact that mediation is not necessarily a perfect solution for all instances. It remains advisable that a legal practitioner be consulted as to the suitability of mediation based on your specific circumstances.
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