Must divorcing parties attempt to mediate their dispute?

Mediation as a Dispute Resolution Mechanism

Mediation assists both parties in working out arrangements for themselves and their children instead of handing over control of their affairs to a court.

The process reduces conflict by helping couples consider the issues that need to be settled and the various options for settlement that may be available to them. It helps couples work toward financial settlements and focus on children’s feelings and needs, encouraging parental cooperation wherever possible.

It is trite that a consensus-seeking process rather than adversarial proceedings result in a saving of both time and legal costs. 

Our law defines 'mediation' “as a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute”.

It is an unfortunate and sad fact, as was pointed out by judge Blieden in Clemson v Clemson [2000] 1 All SA 622 (W), that “divorce proceedings are normally traumatic events for those directly affected by them” and that the court “expects attorneys acting for their clients as professional people and officers of the court, to display objectivity and sound common sense in assisting their clients. Fortunately, most attorneys perform this task admirably. However, there is a minority of attorneys who approach each divorce as a war between the two litigants. The rules of court and legal principles are utilised as weapons in a fight to destroy the opposition. As happens in most wars of attrition, by the time the war has come to an end both sides have lost. There is now permanent hatred between the parties and their joint assets have been consumed to pay legal fees”.

Until recently, there was no statute obliging divorcing parties to mediate.

Historically, three cases dealt with the importance of mediation in family law matters.

In 2003, in Van den Berg v Le Roux, Judge Kgomo ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter and ordered that only subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute.

In 2004, in Townsend-Turner and another v Morrow the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy's maternal grandmother. The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access. The court ordered that the mediation had to commence within two weeks of the granting of the order that it should continue for a period of at least three months or for the duration of at least four mediation sessions. The parties were also ordered to share equally the costs of the mediation.

In 2009, acting Judge Brassey in Brownlee v Brownlee (2008/25274) found that disputing parties had a duty to attempt to mediate the dispute and that the opposing attorneys should have encouraged mediation. The judgment emphasised the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to attempt mediation at an early stage and to avoid the delays and expense of running a trial. Normally an unsuccessful litigant pays the costs of the successful one. Judge Brassey expressed his disapproval of the parties' conduct and made each party bear their own costs.

The Brownlee case puts parties and their legal team at risk if they do not attempt to mediate the divorce dispute at an early stage.

The law now does the same.

Effective from 9 March 2020, Rule 41A of the Uniform Court Rules of the High Court provides that in every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.

A defendant or respondent shall, when delivering a notice of intention to defend or a notice of intention to oppose, or at any time thereafter, but not later than the delivery of a plea or answering affidavit, serve on each plaintiff or applicant or the plaintiff’s or applicant's attorneys, a notice indicating whether such defendant or respondent agrees to or opposes referral of the dispute to mediation.

If the parties so agree, the litigation will be stayed pending the outcome of the mediation process. The parties sign an agreement to mediate and the process of mediation shall be concluded within 30 days from the date of signature of agreement (but a Judge may on good cause shown by the parties extend such time period for completion of the mediation session).

Unless the parties agree otherwise, liability for the costs of a mediator shall be borne equally by the parties participating in mediation.

If either party opposes the referral of the dispute to mediation, it must advance sound reasons for the opposition.

Failure to agree to mediation or to advance good reasons, may entail a costs and/or punitive costs order against the recalcitrant attorney and/or his client.