Mediation in Family Law

South Africa is populated, in the main, by citizens with limited resources. In a situation where a family related dispute arises between parties, the only way in which such disputes can be resolved is currently in a court (although this is changing). This entails the employment of family law attorneys, counsel, the incurring of huge costs and an intricate and formal process which can take an inordinately long time.

Very few lay people have the time, energy or resources to embroil themselves in family law litigation (and particularly in a system which is traditionally seen as being Westernised and inapplicable to the indigenous section of the South African population). Between parties of an Afrocentric ilk, such disputes are often resolved at a community and informal level. Access to our justice system in a matter related to family law is essentially a benefit reserved for the wealthy (who represent a very small percentage of our population).

Unfortunately, and due to the nature of the adversarial court system, the focus tends to be more on winning, it tends to be past focused  and it is not in the interests of the lawyers representing the parties to seek a swift resolution with as little negative impact as possible on future relationships. The dispute is seen as a purely legal event and the emotions and psychological vulnerabilities of the parties are resolutely ignored. Whatever conflict has led to the couple electing to investigate a divorce is exacerbated the minute they step through the doors of their chosen family law attorney.

Another significant disadvantage of our adversarial system, which is born out of a combination of all of the aforegoing, is the impact that the litigious environment has on particularly the children of the marriage and the extended family. The children become bargaining chips for both parents, and long after the litigation has ceased, the war rages on over issues of access, maintenance and financial dissatisfaction arising from the final agreement or court order granted.

This leads to a further criticism which can be levied at the adversarial system which is essentially a paternalistic regime – in which a judge dictates the family law manner in which the issues pertaining to the division of assets, access and maintenance will be decided  – and the parties have very little to do with the overall outcome of the matter which is typically (even in negotiated settlements) dictated by legal representatives and the presiding officer.

MEDIATION AS AN ALTERNATIVE

To avoid the circumstances detailed above, many experts are calling for the use of a mediator as an alternative way of resolving disputes. Mediation in a family law environment takes place, ordinarily, in a setting at which just the parties (and possibly children and the extended family depending upon the dispute and the abilities and specialisation of the mediator) are present. The mediator is an impartial third party trained in the art of mediation who, by virtue of whichever mediatory system he or she chooses to employ, facilitates the negotiations between separating parties in assisting them to reach a settlement agreement. It is essential in the process for the mediator to refer the parties to the relevant family law experts for legal or psychological advice in order for them to make properly informed decisions in reaching the agreement in question.

The mediator method is an inquisitorial one in terms of which, at least in the private realm, all information is treated confidentially.

As an answer to the adversarial court system, using a mediator certainly does solve many of the problems arising in the employment of the former method, including, inter alia, it is less time consuming, it is more cost effective and informal, and it encourages meaningful communication between the parties –  which results in lessened conflict and parties enjoying a greater say in the resolution of the legal issues between them. This ultimately leads to an enhanced commitment to the terms of the agreement hopefully reached at the culmination of the mediation sessions.

Insofar as children are concerned in family law, the problems which arise in accommodating children’s rights to be heard and express their views are more easily solved and implemented in an inquisitorial environment using a mediator – which takes into account the best interests of the child by acknowledging the existence of feelings as well as legal disputes. Ultimately, this helps in furthering the future relationships of parents in their dealings with one another.

By Gillian Lowndes, attorney specialising in family law