Divorce mediation is a process in which an impartial third party, known as a mediator, helps the divorcing couple reach mutually agreeable terms regarding the division of assets, child custody, maintenance, and other issues related to the end of their marriage. Unlike a judge, a mediator does not make decisions or take sides but facilitates discussions, guiding the couple toward a solution that both parties find acceptable.
Mediation is especially beneficial because it allows couples to retain control over the outcome, rather than leaving critical decisions to a court.
The Importance of Mediation in South African Divorce Law
South African courts encourage mediation as a first step in resolving family law disputes, particularly divorce cases.
The Children’s Act 38 of 2005, for example, emphasizes the importance of using mediation to resolve disputes involving children, such as custody and access (parental rights and responsibilities).
This is aligned with the principle that all decisions should be made with the best interests of the child in mind.
Divorce mediation is not just limited to issues involving children. It also covers the division of assets, maintenance (spousal and child), and any other concerns that might arise during the dissolution of a marriage. The role of mediation is particularly significant for those seeking to avoid the financial strain and emotional toll of drawn-out litigation.
Advantages of Mediation in Divorce
Cost-Effective: Mediation is typically far less expensive than traditional court proceedings. Couples who opt for mediation can avoid the high legal fees associated with protracted litigation, making it a financially viable option for most families.
Time-Saving: Divorce through the courts can take months or even years to finalize, especially if the parties are unable to reach agreements. Mediation, on the other hand, tends to resolve disputes more quickly, allowing couples to move on with their lives faster.
Less Stressful and More Amicable: Mediation promotes cooperation and communication between the divorcing couple. It allows for a less adversarial process, reducing conflict and helping to preserve a working relationship, which is especially important for couples with children who need to co-parent post-divorce.
Flexibility and Control: In mediation, both parties have a say in the outcome. Unlike a court judgment that may favor one party, mediation allows couples to reach tailored agreements that suit their specific circumstances and needs.
Confidentiality: Mediation sessions are private and confidential, unlike court proceedings, which are part of the public record. This ensures that sensitive personal and financial matters remain private, helping to protect the dignity of both parties involved.