MEDIATION IN DIVORCE
It is immediately easy to see even at face value, how Mediation can be beneficial to parties who intend getting divorced.
If mediation can be conducted in the correct spirit, it can not only save time and money, but in addition mediation may take less of an emotional toll on the parties, as well as on any children to the divorce. Mediation can allow the parties to reach a far more expeditious settlement, which consider the best interests of any minor children, paving the way for parents to have grater conspectus of the minor children’s needs and facilitating better co-parenting. The immediate question is that if Mediation is quicker and cheaper, why then doesn’t everyone do it?
Well, just because Mediation is practically cheaper and faster, this is not to say that mediation is easy, and to automatically assume that mediation is a shortcut to finality, would be to assume incorrectly. Mediation can be robust and none the less provides its own set of challenges to parties. Parties must be willing to participate in Mediation and if needs be compromise in order to reach finality. Unfortunately, acrimonious divorces or disputes between parties rarely facilitate compromise. Emotive and bitter feuds between parties are often the downfall to a mediation process, where parties are simply focused on immediately spiting one another, as opposed to the pragmatic bigger picture goal, of an amicable resolution, even if it requires some compromise. Equally, if a party to a divorce is intent on being evasive, to perhaps delay any responsibilities that may follow as a result, mediation is doomed from the outset.
Practically however, if mediation is conducted correctly, this should have the effect of reducing conflict between the parties and couples can work towards settlements that are beneficial to their specific needs, as well as the needs of any minor children. The emotional toll an acrimonious divorce can take on the parties as well as the substantial emotional impact this can have on minor children perhaps, should dictate that parties should at least consider mediation first and foremost. One can see that the consensus seeking approach mediation provides, as opposed to adversarial proceedings, has substantial benefits.
BUT IS MEDIATION COMPULSORY?
With effect from 9 March 2020, Rule 41A has been added to the High Court rules. This new rule mandates that parties to a dispute engage in potential mediation from the outset. The party instituting proceedings is obligated to issue such a notice seeking agreement from the other side whether a dispute can in fact be referred to mediation. The parties are required to state the reasons why any dispute cannot be referred to mediation or why they believe a dispute cannot be mediated at all. Mediation in addition is ongoing, and a divorce can be referred to mediation at any stage of proceedings by agreement between the parties. However, this procedure remains non-compulsory in the sense that it doesn’t force parties to the mediation table, only that parties are required to consider mediation at the outset of any dispute.
Mediation therefore remains voluntary, however, with the inclusion of Rule 41A, this at least at a minimum requires parties to consider mediation as a form of alternate dispute resolution. Mediation, if considered, may result in swift, informal and inexpensive resolution of disputes, avoiding the costs and exhaustive process that may follow should matter proceed through court. The Rule doesn’t make mediation compulsory but at least requires parties to consider this, and certainly this is an indication by the judiciary that mediation has a greater, more active role to play in the resolution of disputes.
Mediation certainly has a greater Role to play at the outset of not only divorce proceedings, but in resolution of all disputes. We believe that this process and the introduction of this new Rule has substantial benefits to parties to a divorce, and we would advocate that parties consider mediation in divorce, where this is a possibility.