The gentler way to divorce

WHEN former magistrate Laurie Greyvenstein left the legal profession 17 years ago, he started Social Justice Network, which aims to “empower communities, families through shared decision-making". He is passionate about the power of mediation to change lives by harnessing joint decision-making in dealing with conflict situations such as divorce. The Social Justice Network now has the biggest number of accredited family mediators in South Africa, and Greyvenstein chairs the National Board of Family Mediators. 

Explain the nuts and bolts of divorce mediation.

It is a process where two people, with the help of a third party, work through the issues that need to be resolved in order to end their marriage. Part of this process is to decide on spousal maintenance, discuss rights and responsibilities towards their children and draft a parenting plan which will become an order of the court. The aim is for the two parties to come to a settlement agreement without having to enter the emotionally harrowing and expensive process of litigation.

Divorce is a process. In fact, it is a number of processes. A financial and legal one, but also an emotional one. It is a process of saying goodbye and grieving, too, because it is also about loss. A skilled mediator will understand this, and mediation is also a therapeutic tool that allows people to “close the circle" on the emotional front.

How do you approach the process as a mediator?

When you sit down with two people who want to end a marriage, it's important to understand where they are coming from. As a mediator, I need to be sure that the people I'm assisting have to go through this divorce. If I see that they might resolve their problems with further counselling, I will suggest that.

But if both parties are committed to ending their marriage, we enter into a mediation agreement to ensure that all parties understand what their roles are and how the process works, then proceed from there.

How long does the process take?

I have found that 80% of cases can be resolved within one two-hour session. A further 10% of cases will require further engagement, usually two or three sessions. And the remaining 10% will not be able to be resolved through mediation. In cases where, for instance, you are dealing with someone who has a personality disorder, mediation will not work. An extreme narcissist is not a candidate for the mediation process.

Why choose mediation instead of the legal route?

The legal process can be financially ruinous but it is also confrontational and pits two people against each other. Mediation falls under the umbrella of alternative dispute resolution and is a mechanism to settle disputes out of court. So, a mediator will guide two people towards finding a solution to their problems then assist them to draft a settlement agreement, which will become the court order.

Mediation can allow two parties to skip litigation completely, or it can fit in anywhere during the litigation process. Even when the judge is ready to deliver judgment, the parties can ask to mediate the matter. The hearing will then be postponed and the parties will have the opportunity to settle the matter on their own terms.

Mediation is a way for people to reach creative end-of-marriage solutions. Every couple and every family is unique, and through mediation you can get to a point of having a customised settlement agreement that can then become an order of the court.

Who can be a mediator?

Family mediators usually have a background in law, social work or psychology. But the law makes provision for anyone with a matric to undergo training and be a mediator. A divorce mediator is a qualified person who has been trained to ask the right questions in order to guide two parties, but they also must have knowledge of family law.

What are the building blocks of the mediation approach?

Divorce mediation is based on five important philosophies. The first is confidentiality. Information shared during the  process may not be used as evidence by any of the parties. The mediator can also not be called as a witness to testify for or against any of the parties.

Second, mediation is voluntary. Parties participate because they want to solve their problems with the help of a third party. A person may withdraw from mediation at any point. The mediator may also withdraw if there are ethical concerns.

Third, mediation is aimed at being an empowering process that provides two people with tools to make their own choices and decisions about their family and their future, instead of a judge or magistrate making decisions on their behalf.

Fourth, the mediation process is neutral. A mediator is an impartial person who does not take sides for any of the parties and cannot make decisions on their behalf.  The mediator can only guide the parties. 

Finally, mediation provides the opportunity to resolve disputes in an informal environment, as opposed to a court which is a formal and hostile environment with cross-examination by lawyers and so on. In that environment, it is far more difficult to settle disputes.

Is mediation cheaper than litigation?

Absolutely. And faster. Court processes can take many years. But you can find a mediator within a week and you can settle your dispute within a week. And once you have a settlement, the matter can be finalised.

In terms of costs, there is simply no comparison. I have seen people being ruined by legal costs, and I have seen people being exploited terribly by lawyers in the process. In our practice, the fees are as follows: you pay an upfront R770 registration fee to get the mediation agreement in place and open a file; usually, that will cover the administration of the process. Sometimes there will be additional admin costs if an inordinate amount of phone calls or correspondence are needed. Our hourly mediation rate is R1,500 and a session is two hours. 

As an aside, I also find it best if both parties share the mediation cost because if one person pays it can sometimes subtly influence the mediator to favour one party over another. 

Apart from the emotional process, what are the legal and financial decisions that need to be worked through in a divorce?

Spousal maintenance must be dealt with because spouses cannot go back to court after the divorce has been finalised. There are three kinds of spousal maintenance.

The first is rehabilitative maintenance, where one of the spouses is paid an amount agreed to by the parties for a certain period. It is aimed at helping someone get onto his or her feet again after the divorce.

The second is permanent maintenance. This is usually given to people who are too old to find a job to look after themselves after the finalisation of the divorce.

Third, there is the option of nominal maintenance, where a nominal amount such as a rent per year or per month is granted.

Then there is the issue of parental responsibilities when minor children are involved. The parties must decide how their parental responsibilities and rights will be divided, Married parents both qualify for full parental responsibilities and rights, such as taking care of the child, having regular contact and remaining the guardian.

When parties enter divorce mediation, they decide who will be the caregiver of the children. In many cases, parties decide  one parent will be the primary caregiver and the other will have the opportunity to spend time with the children, normally alternate weekends and alternate school holidays. Care can also be divided between the parents, and this is known as shared residency. Child maintenance is something that is worked out depending on the living arrangements and so forth. 

Is drawing up a parenting plan part of the mediation process?

Yes, if there are minor children. A parenting plan is an agreement between the biological parents of the child and is a creation of our new Children's Act. It's a living document which can be changed as circumstances change.

Previously, when we only had settlement agreements, parties had to go back to court every time they wanted to change their arrangements with regard to children. But with a parenting plan, it's possible for the parents to sit down with the mediator and discuss and agree on the new terms. Parenting plans can be made an order of court and registered with the Office of the Family Advocate. It's  a user-friendly document.

♦ VWB ♦

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