A pragmatic look at mediation as an alternative to divorce litigation

Abstract

Divorce or family breakdown, which is a reality for almost everybody, is a multidimensional process which involves both psychology and the law. Nonetheless, it is treated by legal practitioners solely as a legal event. Furthermore, the adversarial system of litigation has very negative consequences for divorcing parties and their children. Divorce mediation, where an impartial third party facilitates the negotiations between divorcing parties, is a multi-disciplinary process which synthesises behavioural sciences and law to the benefit of parties and children. It is a flexible, informal and private process which gives parties greater autonomy as regards the consequences of their divorce and which focusses on the best interests of children. Although not all cases are suitable for mediation there is nonetheless a worldwide trend towards making mediation mandatory in family matters. Traces of this trend can be found in Anglo-American legal systems, European-continental legal systems, Far Eastern legal systems and African legal systems, and more specifically South Africa, where the Mediation in Certain Divorce Matters Act 24 of 1986, the Children’s Act 38 of 2005 and case law have started to mandate mediation in certain family matters. Despite the fact that family mediation in South Africa is currently exercised in the public, the private and the community sectors in South Africa, there is ample scope for more comprehensive application of mediation. In future parties should first be referred for private comprehensive mediation. However, if financial, cultural or other logistical considerations justify it, parties may be referred to state-subsidised community or public mediation services. All mediators should, however, be accredited by a national regulatory body if they comply with specified requirements. Mediation training programmes need to be standardised and uniform minimum practice standards need to be developed for all mediators. Most importantly, the public needs to be educated about mediation so as to establish a paradigm shift in the way people set about obtaining a divorce.