FAMILY LAW

MEDIATION

A divorce can be a gruelling and emotional roller coaster for both parties.  The facts of your case are unique and no one knows them better than you.  In divorce mediation, both you and your spouse agree that the breakdown of your marriage is irretrievable but wish to obtain assistance in dividing your estate, calculation of maintenance and what happens with your children.

A mediator will assist you and your spouse to make a decision to best suite your needs.  Our trained mediators will make use of vast techniques in order to obtain these results.  The purpose of mediation is to provide a safe space whereby a dispute can be resolved.

The courts have also started favouring mediation in family law matters, whereby judges have criticised the parties for not attempting mediation first before going to court.

Mediation serves two purposes.  The first purpose is to obtain an agreement which both parties have accepted, so as to avoid possible future conflict, and secondly, it is to conserve legal fees.  Mediation can be done on any matter, even criminal and civil matters.  The only requirement is that both parties need to voluntarily attend the mediation.  Any party can halt the mediation at any time if they are not satisfied, and the mediator will also stop the process if it becomes clear that mediation is not possible.

The important thing to remember is that whatever is said in mediation is privileged and may not be used in a court of law.  The mediator will also not be able to represent either party in litigation if no agreement was reached. 

DIVORCE MEDIATION

Divorce mediation consists of a process where the married couple has an independent mediator resolve the division of the estate (moveables, immoveables, pension, retirement annuities, medical aid), maintenance, contact rights with children, legal fees or any debts, businesses, shares or investments.

This process is completed via several sessions.  The amount of sessions will depend on how quickly the parties can come to an agreement.  If the parties come to an agreement, this is put in writing, which can then be taken to any attorneys to proceed with an unopposed divorce, or, if the divorce was opposed, to convert the opposed divorce into an unopposed divorce.

If the divorce mediator was an attorney, then that mediator may also proceed with the unopposed divorce by consent of the parties.  This is usually the best and more cost effective option - which service our firm can offer.

If however mediation is not successful, the mediator, if an attorney, may no longer represent either party.

PARENTING MEDIATION

As indicated in the children section of the website, the children's court requires that mediation FIRST be attempted before the parties go to court.

The mediation that can be done here, and the agreements that can be drafted may be vast.  It can be between parents, between grandparents, or between siblings.

The aspects addressed can be similarly vast, as it can range from primary residence (custody) to religion.

The Childrens Act however requires that this be mediated by either a) the Family Advocate, b) a social worker, c) a psychologist or d) or a suitably qualified person.  The last is, amongst other, accepted as being an attorney with accredited mediation training - which we can provide.

CRIMINAL MEDIATION

If a charge has been opened at a police station and the matter has been referred to the criminal courts, provided that the complainant is not the state (a government department), mediation can also be entered to resolve the matter to prevent a person from getting a criminal record.

During this mediation process the complainant will be represented by the National Prosecuting Authority, and the accused will either represent himself, or be represented by an attorney.  It is suggested to be represented by an attorney during this process as it is restricted when it comes to time, and solutions need to be obtained in a timeous manner, and an attorney with experience in this would be able to think of solutions that is often not readily apparent.

CIVIL MEDIATION

This is a more relaxed type of mediation than the rest, in the sense that there are less restrictions in terms of laws and procedures, and anything can be exchanged and or tendered, as opposed to family mediation whereby certain rights cannot necessarily be conferred, and criminal mediation where the exchange of money in most circumstances are prohibited.

EMPLOYMENT MEDIATION

A dispute between an employer and employee is usually handled by a bargaining, consultation or disciplinary process, and if the dispute cannot be resolved, the forum it eventually goes to is the CCMA or bargaining council.

Mediation in this context is rather applied between employees, to resolve a dispute that arose here, where mediation is used to resolve the animosity between the employees.  This is often done by managers, the human resources or employment relations (better known as industrial relations) department.  It can be effective if handled internally if there is no bias, but often cases a degree of bias is applied to this process, which can result in ineffective and or negative mediation.

© 2018 Anton Swart Attorneys Inc

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75 Durham Road,

Clubview, Centurion.