Divorce mediation can either be done by an individual or team. Mediators intervene on legal and financial matters as well child access. 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.
Sometimes parties are involved in an acrimonious divorce matter and each appoints their own attorney to represent them. The attorneys often cannot settle the matter and find no common ground even to try and settle. The attorneys and parties then sometimes agree on an independent mediator to be appointed in an attempt to assist.
The mediator’s report can often be useful in allowing a settlement. The appointed mediator should no doubt be registered as such and should be FAMAC/CEDR accredited. The mediator would have a couple of meetings with the parties and would then submit, in writing, a summary of the mediation.
I often hear parties complaining that the mediator had taken a biased view in favour of the other spouse, and complaining that they are not happy with the outcome of the mediation. I recently, however, had a matter where the parties had success with their mediation and both agreed that most of the points in the mediation summary be incorporated into the divorce consent paper.
I was acting for the lady in the divorce. She had instructed me to go ahead with the divorce, only to instruct me to put the summons on hold just as I had sent it to the sheriff. A short while later her husband then went ahead and summonsed her. Even though there were two minor children in this matter, the main point of dispute was not the maintenance or care and contact aspect, but it was the aspect of division of the assets, which was difficult to settle.
The mediator in this case, after consulting the parties, in his report, set out the proposals which were found to be acceptable to both parties. The husband had agreed to transfer fifty percent of the value of his provident fund to his wife, as well as certain amounts from his savings accounts and investments, as well as dividends of a certain fixed property and a vehicle. The wife agreed to this.
For an attorney, it is far easier to draft a settlement agreement when you have in front of you a mediation summary report, which sets out the terms of settlement of both parties. My criticism of this, however, would be that an attorney has an ethical duty to protect his/her client. For an attorney to simply accept the mediation summary, without even seeing written valuations of the assets, would be taking the lazy approach.
Whilst mediation certainly goes a far way in assisting attorneys in reaching settlements, one must respect the fact that the attorney, as opposed to the mediator, is the party with proper legal qualifications and one cannot simply go on what the mediation summary has to say on the terms of settlement.
I, myself, am more than prepared to assist in a capacity as mediator to a couple which approaches me. The parties must, however, realize that if they cannot then settle, I will be forced to withdraw as each of their attorney.
Family Mediators' Association of the Cape
Divorce & division of the estate