Key Features of Family & Divorce Mediation

Family and Divorce Mediation is a structured and confidential dispute resolution process. It is designed to assist parties in resolving conflict constructively and outside of court. Family and Divorce Mediation in South Africa is guided by a number of important principles and features. These features distinguish mediation from litigation and help to create an environment conducive to communication, problem-solving and informed decision-making concerning the future.

The key features of mediation include the following:

 

Mediation is Voluntary  

Participation in Mediation is voluntary. Remaining in the Mediation process is voluntary. Agreeing to the terms of a settlement reached at Mediation is voluntary.

Although parties who institute legal proceedings in the High Court and Magistrates’ Court are generally required to consider mediation before proceeding with litigation, mediation remains a voluntary process insofar as settlement is concerned. (The exception being Gauteng and Pretoria where specific attendance at mediation is required in terms of a Court protocol). In other areas of South Africa, parties are not ordinarily compelled to attend mediation. Where parties do participate in mediation, they are not compelled to settle their dispute. Rather, they are expected to engage in the process in good faith and to make a genuine attempt to resolve the matter before resorting to court litigation.   The decision to remain in Mediation as well as the decision to terminate a Mediation does not need to be by agreement, it can be made unilaterally by a Party.

To better understand what participation in a mediation process looks like in practice, read our guide on Preparing for Mediation. 

 

The Role of the Family & Divorce Mediator

The neutrality of the Mediator is one of the hallmarks of Mediation. The Mediator to a dispute should never have any vested interest in the subject matter under discussion, nor should the Mediator ever have a vested interest in the outcome of the matter. In other words, Parties either settle their matter or they don’t settle their matter dispute, the Mediator should never place any Party under pressure to settle. The Mediator should ideally also not have established any prior relationship with any of the parties to the Mediation. Where the Mediator has had a prior relationship with one or more of the Parties, the Mediator is required to bring this to all the Parties’ attention before the Mediation starts. The Parties must then be given a chance to apply their mind to this and to decide whether they have any objection to the Mediator’s continued involvement in their process.

Where children are involved, Parenting Plans often play an important role in helping parents make practical arrangements for the future.Learn more about the role of the Mediator and the principles that guide the mediation process. Where children are involved, Parenting Plans often play an important role in helping parents make practical arrangements for the future.

 

Mediation is Confidential

All discussions held at Mediation are confidential. Excepting a number of defined circumstances, Mediators may not disclose the discussions held at Mediation. The exception to this rule is where there is a threat to harm a child or the other Party. In cases such as these, the Mediation will immediately be stopped.  Settlement discussions and proposals put forward at mediation are always protected by the “without prejudice” rule. Mediation discussions and proposals only become binding on the Parties when they are signed. Discussions held at mediation may not be used against a Party in subsequent litigation. To learn more about how confidentiality operates within the family mediation process, see our Overview of Family Mediation.

 

Mediation Promotes Self-Determination

The Mediator does not possess any power to compel the Parties to settle their matter. Additionally, the Mediator does not act as a Judge and decide on the matter. Further, the Mediator does not evaluate the conduct of the Parties and determine who is right and who is wrong. The Mediator may not act as the Parties’ Attorney or Therapist. Although the Mediator may be an Attorney, they are reuired to remain neutral and balanced throughout the process. They should also encourage the Parties to seek independent legal advicewhere required, especially before signing any document coming out of mediation discussions.  Self-determination is one of the cornerstones of family mediation in South Africa and is explored in greater detail here.

 

Mediation is Future Focused

One of the critical elements of mediation is that it focuses primarily on future outcomes and ensuring that the agreements that the parties might come to during the mediation process are not only mutually beneficial and mutually satisfactory, but that they are also realistic and capable of standing the test of time.

For more information on the many advantages that mediation offers please click on this link: https://www.traceyleighwessels.com/ten-advantages-mediation/ 

 

In Summary:

The features of mediation work together to create a structured, confidential and future-focused process for resolving conflict. By promoting communication, party self-determination and constructive problem-solving, mediation provides couples and families with an opportunity to resolve their disputes in a manner that preserves dignity and supports more sustainable outcomes into the future.