Did Your Attorney Advise You of Your Duty to Mediate?

Duty to MediateSouth African case law has changed the way the courts view the start of a divorce process with Acting Judge Brassey in the South Gauteng High Court (Brownlee v Brownlee: 2008/25274) emphasising the duty of parties to attempt to mediate a dispute involving a divorce process and the obligation of their respective attorneys to encourage their clients to mediate the resolution of their dispute prior to embarking on litigation and facing the delays and expense of running a divorce trial.

This means that when you consider divorcing your spouse or when you receive a summons from your spouse to start legal proceedings for a divorce, the attorneys involved, must first “encourage” you and your spouse to attempt mediation as a means of understanding the issues that would need to be decided on and resolved in your settlement agreement.

To give effect to this encouragement you and your spouse must both attend mediation sessions and actively engage in good faith to reach agreement on the terms of your settlement agreement and if there are children involved, then you both create a parenting plan in mediation that pertains to your particular circumstances.

Be careful of attorneys who merely suggest mediation to tick a box that reconciliation or mediation was attempted but the other party declined to participate or did not act in good faith.

An invitation to mediate should not be taken lightly or declined on the basis that the attorney believes that there is nothing to discuss and that you will receive more relief from a judge.  Acting Judge Brassey in the Brownlee case, went on to cap the fees of the attorneys on both sides because they had failed to advise their clients to attempt mediation at an early stage. The judge expressed his disapproval of the parties’ conduct by making each party bear his or her own costs:

“How much richer would this solution have been had it emerged out of a consensus-seeking process rather than in adversarial proceedings in which positions were taken up that gave every appearance of callousness and cruelty. This is but an instance of what mediation might have achieved. In fact, the benefits go well beyond it. In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached.”– (Brownlee v Brownlee August 2009: South Africa, South Gauteng High Court,)

Therefore it should be your prerogative and that of your spouse to instruct your respective attorneys to allow the process of mediation to happen before any litigation processes are completed. You may initiate mediation sessions even after your summons has been served, and you may then return to your attorney after the mediation sessions to have your memorandum of understanding created in mediation converted to a settlement agreement and made an order of the court.

Mediation is seen as part of the legal process in South Africa and allows for parties to make decisions that are conducive to their own family and circumstances. The contents of their agreement are based on their own realistic terms and not from a template created for all divorcing couples.


This article was written for fairdivorce.co.za by Adv. Veerash Srikison (Internationally accredited mediator at Fair Practice in Johannesburg)

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