Divorce is a messy, costly business. And it’s on the increase. The South African Justice Department’s annual report for 2012 – 2013 showed that the divorce rate increased by 28% from the previous year. But divorces don’t have to involve expensive lawyers and drawn-out battles. Many people are turning to mediation as a more cost-effective and less combative way of ending a relationship.
Alfred Wolpe of Divorce and Family Mediators, explains that while legal professionals have been trained to be adversarial, and are acting purely in the best interests of one partner, mediators are focussed on bringing the matter to resolution in the best interests of both parties. Because of this, mediation is faster and cheaper. Here’s how it works.
A divorcing couple will engage a mediator to help them to discuss and formalise a divorce agreement. In the first session, the mediator should explain the process and deal with any priority matters – for instance if one party is under financial pressure and needs financial support even prior to the divorce.
Over a number of sessions, usually around four to six, the mediator will assist the couple in coming to their own amicable outcome about how to split assets, plan for the future and what financial support is needed by one or the other party. The mediator might insist that the couple do research into their respective financial situations to ensure that their future financial plans are sound.
When the process is complete, the mediator will draw up a settlement agreement which will then be sent to a mediation-friendly legal professional. He or she will make sure that the agreement is within the ambit of the law and will present it to the courts as an unopposed divorce. This means it won’t need to be argued in the courts, and will be signed off quickly.
While times and costs can vary considerably from one couple to another and one mediator to another, Wolpe says that the cases he mediates are usually resolved within six to eight weeks from the point of first engagement to the divorce being granted by the courts and at a cost of between R10 000 to R25 000 including the legal processes.
By contrast, contracting legal counsel can start at R25 000 and quickly escalate into the hundreds of thousands and can take over a year. Wolpe points out that the more that is spent on legal fees, the less there is to be divided between the parties or invested in their children’s future after the divorce.
If there are children involved, coming to an agreement on financials, visitation, education and contributions is a mediation priority. Generally speaking, the legal system now favours a 50-50 split of time with each parent, but obviously this can be adjusted by agreement of both parties taking into consideration ability and availability.
The children also have a right to express their wishes in the divorce process, and a trained and proficient mediator can be the person to hear those wishes. This obviously doesn’t mean that they need to be carried out but they should be taken into consideration.
The specifics of the agreement relating to the children will be drawn up into a parenting plan. This plan can be anywhere from three to forty pages, depending on the level of conflict and detail. The plan then has to be approved by The Office of the Family Advocate before the divorce is presented to the courts. Again, if there is an unopposed and fair agreement, this should be merely a formality.
Although the divorce mediation process is shorter and cheaper than going the legal route, the ultimate divorce decree is the same document as a contested divorce and equally legally binding. However, Wolpe says that while the outcome is the same – the couple is divorced – because the process has been more amicable, their final relationship is often better.
“Through the mediation process, they learn to communicate again,” he says. “Their focus has been on fairness rather than being adversarial, and that makes for as positive a divorce as it’s possible to have.”
While no divorce is ever a pleasant experience the best outcomes are reached when both parties want to finalise their relationship at no great emotional or financial cost to the other party. Mediation offers a fast, fair and efficient option that allows both parties to get on with their lives as quickly and cost-effectively as possible.