Mediation in divorce proceedings in South Africa has become an unavoidable legal consideration as it is a prerequisite to the issuing of summons. Both the initiator of divorce proceedings as well as the defender are mandated to indicate whether they are either opposed to or in favour of embarking on mediation before proceeding further with formal litigation proceedings.
However, despite a mediation notice being a prerequisite, it must be noted that parties may at any point during litigation proceedings apply for permission from the court to embark on alternative means of dispute resolution such as mediation. This positions mediation as an encouraged avenue for divorcing parties to consider and also eases the burden of congested court rolls and costly legal proceedings between parties. The rules pertaining to mediation in court proceedings are well-established and are not open to abuse.
Mediation, unlike formal litigation proceedings, allows the parties themselves to play an active role in the outcome as opposed to a presiding officer ordering a party to perform a certain act. Parties can express their feelings and concerns more openly to a neutral third party whereas in litigation it becomes a factual-based process together with the application of law.
Mediation, however, requires a certain degree of existing amicability between the parties to enable them to sit together at a table and listen to each other with a willingness to compromise and reach an agreeable outcome. Unfortunately, at the start of divorce proceedings, parties are not always in a frame of mind where such amicability is present, and mediation is therefore not always considered due to the battle lines that have already been drawn.
Also to be considered with mediation is the logistical aspects of mediation. Should the parties be unable to agree on the logistical aspects of mediation such as the mediator, where the mediation must take place and the carrying of the costs involved in mediation, it will also derail mediation as a successful option.
But, the fact remains. Mediation is a powerful tool which can lead to a successful outcome in divorce proceedings and can have very desirable effects for families, especially children, which may not always be the result when parties have set their sights on slugging it out in a courtroom.
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