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Mediation in divorce

It happens from time to time in a divorce case that it becomes abundantly clear that neither party can really afford to run up unnecessary costs. The one attorney would send settlement proposals to the other attorney, and if they are not accepted the attorneys sometimes agree that a mediator be appointed to provide a neutral forum within which to debate and address the outstanding differences between the parties.

Normally if the issues are limited and simple the mediation would be fruitful. The usual agreement relating to the mediator’s fees would be that the two spouses would each respectively bear one half thereof. This is only fair as the two parties would normally jointly appoint the mediator.

The mediator is usually an attorney who does not act in the capacity of attorney in the mediation. The mediator can if he/she chooses provide legal information, but plays a neutral, facilitative role, and does not advise in the same way that an attorney would.

A common reason for parties in a divorce seeking mediation would be where they cannot agree on the rights of contact to the minor child (ren). A divorce sometimes takes quite long and instead of a party bringing a costly application to court for access (known as a Rule 43 Application) the parties would agree on mediation.

The mediator would not make decisions for the parties, but would help the parties to explore options. Nobody really knows what a court would decide at the end of a legal matter, as each case and each Judge/Magistrate is different, but the mediator would try and encourage a settlement that the court would be likely to approve of.

A mediator may not act as such if he/she has previously acted for either party. The mediation, like a consultation with an attorney must be, is confidential and the mediator may not provide information to any third party.

The mediation will only be successful if both parties are open and honest. All information must therefore be disclosed truthfully, particularly as regards finances. Sometimes the mediator may ask one or both parties to sign an affidavit wherein that party swears as to the accuracy of the information provided.

The costs of the mediator vary from mediator to mediator. A session is normally about an hour to an hour and a half long. The costs of this would be at least R700 per hour or even more (as when the article was written, 13 Mar 2010). The mediator would then usually charge separately for drafting the final summary of the mediation process.

Mediation is a very worthwhile form of dispute resolution in a divorce matter. It may end up saving the parties quite a bit of money. It usually takes three or four sessions for the mediator to reach an agreement between the parties. The length of the mediation procedure would of course depend on the complexity of the matter, as each case is different.

couple at a marriage counselling session

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