Divorce Mediation Set to Become Mandatory Before Litigation in South Africa

Divorce mediators in South Africa have always been free to operate without any form of regulation in terms of training and skills. Since the introduction of the “Children’s Act 38 of 2005” in April 2007 there have been moves to have divorce mediators accredited through a national accrediting body.National standards have been drafted for the training of family and divorce mediators, as well as the accreditation of mediators, in anticipation of the draft Mediation Rules being gazetted which will make mediation before litigation in contested divorces mandatory.The standards for training and practicing of mediation have been based in international standards. Without the system of accreditation based on these standards there is no regulation of the quality of service disputing parties are getting, and whether such mediation services actually comply with the definition and rules of mediation.There are intentions in the near future to make it a legal requirement for all disputed divorces in South Africa to be mediated before parties can litigate. These plans are in line with the “Children’s Act 38 of 2005” which states that all matters involving children should be resolved with minimal conflict and minimal time delays.Divorce mediation is regarded non-adversarial, unlike the adversarial system of litigation, and the intention is to further comply with the Children’s Act which states that the Best Interests of ther Child are Paramount. In other words, where divorces involve children, the best interests of the children come before the interests of the parents.Further to this, the introduction of mandatory mediation before litigation relieves the pressure of excessive cases waiting to be heard by High Courts across the country, reducing excessive wasting of both time and money.Draft Mediation Rules have already been drawn up to regulate the process of mediation before litigation in courts, which will require the divorce mediators to be accredited. The rules explain the process to be followed when a case is brought before court, and referred to mediation. It is anticipated that these mediators would have to be accredited by a recognised national accrediting body, such as the National Accreditations Board for Family Mediators (NABFAM) which will have affiliate bodies in each of the 9 provinces. These affiliate bodies will be responsible for accrediting mediators in each of the provinces. It is now just a matter of time before the Rules are gazetted.Many legal experts argue that mandatory mediation will delay the settling of contested divorces since one of the requirements is that voice of the child must be heard and given due consideration. They argue that in such cases the voice of the child would need to be heard by a qualified professional such as a Psychologist which would require additional time, and additional expenses to both parents. Proponents of mediation counter this argument by saying the benefits of mediation outweigh the costs and time spent on professional opinions which would ultimately provide families with a better settlement agreement in terms of fairness, balance of power and meeting the needs of children.The Draft Mediation Rules, as well as the “Children’s Act 38” and the NABFAM Accreditation criteria may be viewed at http://www.divorce-mediators.co.za