Divorce Mediation In South Africa | NEW JERSEY Divorce Attorney News

1聽聽聽聽聽聽聽聽聽 Introduction A number of recent court cases dealt with the importance of mediation in family law matters. The most recent judgement dealing with the aspect of divorce mediation was the judgement in Brownlee v Brownlee in the South Gauteng High Court, by Acting Judge Brassey that focussed on the duty of parties to a dispute to attempt to mediate the dispute and the obligation of the opposing attorneys to encourage mediation with their clients, before litigation commences. 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 go to mediation at an early stage. 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. 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 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 <a href="http://www.hockeynhljersey.com/nfl-jerseys-c-256.html"><strong>nfl jerseys for sale</strong></a> 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. 2聽聽聽聽聽聽聽聽聽 Divorce mediation structures in South Africa Despite the fact that much has been written about divorce mediation and some media hype about it in the past two decades, little mediation still takes place in divorce matters in South Africa. One of the major obstacles is the cost factor and only a handful of the more prosperous section of the South African society can afford to make use of mediation services. Getting divorced by means of Divorce Mediation commonly costs around R 12,500-00 in total. Although the costs can be shared between the parties it is still expensive in comparison to an uncontested divorce where the parties amongst themselves can agree on a division of assets, maintenance, visitation and access and the kids and using a service like www.edivorce.co.za, will still be more cost effective. There appear to be a couple of private mediators, who are generally affiliated to mediation organisations such as SAAM (The South African Association of Mediators in Divorce and Family Matters), FAMAC (The Family Mediators Association of the Cape), ADRASA (The Alternative Dispute Resolution Association of South Africa) and), it appears that these private mediation services are totally under-utilised. Besides the private services mentioned above, divorce and family mediation is also being offered by various non-governmental and community-based organisations such as Family Life and FAMSA (The Family and Marriage Society of South Africa). In light of the decisions in Brownlee v Brownlee and Van den Berg v Le Roux regarding mandatory private mediation, it is very clear that divorce mediation, on private level, will soon start to play a more prominent role in South Africa. Mediation in the context explained here should, however, not be confused with the services offered by the office of the family advocate in terms of the Mediation in Certain Divorce Matters Act 24 of 1987 (MCDM). The purpose of the MCDM Act is to evaluate the parties and the circumstances of <a href="http://www.hockeynhljersey.com/"><strong>wholesale jerseys</strong></a> a case in order to furnish the court with a report and recommendation on matters concerning the welfare of any minor children, the activities of family advocates and family counsellors should not be regarded as mediation (even though they sometimes indeed try to mediate disputes between divorcing parties). 3聽聽聽聽聽聽聽聽聽 Important aspects of divorce and/or family mediation It is impossible to give a general definition of mediation in the family law environment. The following elements can, however, be regarded as some of the most important features of divorce and/or family mediation: An impartial and neutral third party facilitates the negotiation process in which the parties themselves make their own decisions. The mediation operates under the auspices of the law. The mediation process is confidential. The aim of the <a href="http://www.hockeynhljersey.com/nba-jerseys-c-364.html"><strong>nba jerseys</strong></a> mediation process is to assist parties to reach a mutually satisfying agreement which recognises the needs and rights of all family members. The mediation process is flexible and creative and can be adapted according to the context of the dispute and the needs of the parties. 4聽聽聽聽聽聽聽聽聽 Advantages of divorce and/or family mediation Divorce and/or family mediation has numerous advantages for divorcing couples, children affected by divorce and the judicial system in general: 4.1 It is a much less stressful and emotional experience than the traditional divorce process. Working together with a skilled mediator in a negotiation process results in much less animosity and ill will than the protracted confrontation that often occurs between adversarial lawyers and their clients. The shortened time duration of the process, as well as the considerably lower cost of mediation, also contributes to a lower level of emotional stress. 4.2 Divorce mediation is much less expensive and faster than the traditional divorce process. The divorcing couple pays one mediator instead of two attorneys. Also, having both parties together during mediation sessions dramatically shortens the process and the billable time of the mediator. The cost of divorce mediation is on average 50% lower than the cost of traditional divorce litigation. 4.3 Divorce mediation is better for the children. The divorcing parents remain in charge of their children’s interests and needs, and are able to construct a cooperative parenting plan without turning the children’s futures over to judges and lawyers. 4.4 Divorce mediation results in a lower rate of re-litigation. Mediated settlements are more comprehensive and cooperative in nature, producing a much higher rate of compliance by both parties, and a lower rate of expensive re-litigation. After all, the goal in mediation is to help the spouses come to an agreement that is suitable for their needs and lives. 4.5 Divorce mediation teaches parties how to deal with conflict in a non-aggressive way and gives them the opportunity to express their feelings of bitterness, disappointment and anger. It allows parties to deal with those matters they feel are important, but which the law may consider frivolous or unenforceable. Therefore, unlike in litigation, the mediation process is not restricted solely to legal issues, and allows parties to deal with all facets of divorce. 4.6 Divorce mediation can be cost effective Although mediation may be more expensive than an uncontested divorce, it is definitely much cheaper than contested divorce litigation. In South Africa, the going rate for a mediation session is anything between R500 and R2 000, depending on who the mediator is. The mediation process usually runs for a period of four to six sessions. Six sessions of mediation may therefore cost parties up to R12 000. In comparison, a very straightforward, unopposed divorce costs about R4 500 today and the costs of an opposed divorce may run into the hundreds of <a href="http://www.paalupaikka.com/galleria/displayimage.php?pos=-1528"><strong>RWC 2011 New England Cotton Traders World Rugby Jersey</strong></a> thousands of rands. Mediation can save divorcing parties a considerable amount of money, but can also be more expensive than an uncontested divorce, where the parties agree amongst themselves on the divorce process. 4.7聽聽聽聽聽聽 Advantages for children affected by divorce The stress and animosity often generated during litigation can be emotionally damaging not only for the couple, but for the children as well.聽 Mediation is a more empowering choice for children because: Separating parents maintain control of their children’s needs, and can develop a comprehensive parenting plan. Mediation is more private than a traditional divorce. Mediation enables those who know the children best, namely the parents, and not a third party or institution, to make decisions about their welfare. Section 28(2) of the Constitution of the Republic of South Africa places an obligation on, amongst others, on the mediator to see to it that divorcing parties put the interests of their children first in all negotiations between them. The chances of the interests of children being protected in the mediation process are therefore excellent. Research has shown that upon divorce, mediated settlement agreements provide far more advantageous provisions regarding the interests of children than agreements or orders made in terms of the adversarial system. Mediation emphasises, that parenthood is not terminated on divorce, but that both parents retain their roles and responsibilities in a restructured family. In mediated divorce matters there are thus a greater chance of the non-custodial parent remaining involved in his or her children’s upbringing. The involvement of both parents creates a positive atmosphere for children and helps them to adapt to their new circumstances upon the divorce of their parents. 5 聽聽聽聽聽聽聽聽 The disadvantages of divorce and family mediation Divorce mediation is obviously not without problems. For instance, because a No related posts.