Mediation helps you sort out disputes – without involving huge legal fees or going through a long drawn-out court battle.

Mediation is a voluntary, multi-faceted, and confidential process in which a mutually-selected, impartial mediator helps people involved in controversies to reach an outcome of their own making, which may include the resolution of issues and the preservation of vital relationships. Mediation has the broadest application and the greatest potential for resolving disputes and reconciling conflicts.

Litigation is the process of taking a dispute to a court of law. This process is complicated and formal, involving a series of technical steps in terms of the prescribed rules of the court. The parties are dependent on the experience of their legal representatives and the court’s interpretation of the facts of their case and the law, thereby placing the outcome of their case in the hands of other persons.

The alternative to litigation in family matters is conciliation, mediation and facilitation.

It Costs Less

The average cost of a litigated maintenance issue (increase / arrear maintenance) is R10000 – R45000 and the average cost of a mediated issue is less than R 6 000.  If you have children and are contemplating litigating maintenance you can choose litigation, or you can choose a more comfortable and affordable retirement.

When both spouses meet with one Mediator they can share the cost.  A litigated divorce will cost a couple the majority of their assets.  If the spouses were to pay the fees of separate attorneys to represent them, each would be paying a deposit of R12000 just to get started.  Most litigating couples should expect to spend up to R250,000 in a contested divorce per party.  The litigation process can easily trigger increased conflict, resulting in increased costs. Whereas a mediated divorce is typically resolved in 7 hours or less of mediation and result in a total cost of less than R6000.

For those who cannot find resolution through mediation – traditional legal invention through divorce attorneys is always available.

Most Cases Settle

Almost no cases go all the way to a trial, but the generally given number is more than 90%.  Why go through the expense and heartache of setting yourself into a “litigation” mentality if you are going to settle on the steps of the High Court anyway attending roundtable meetings?

Less Stress

Compared to litigation, mediation is much less stressful. Social Justice mediators insist that the parties communicate in a respectful and non-threatening manner. The process is easier and less formal than traditional litigation.

Neutral Perspective

A Social Justice mediator is strictly neutral and impartial: he or she does not act for either party. The media- tor asks the tough questions and steadily moves the process towards understanding and settlement. Mediation is strictly confidential and nothing that you say can be used against you in future.

Experienced family mediators

Social Justice is proud to say that we are the market leader in maintenance and divorce mediation in South Africa.  Some maintenance courts refer complicated maintenance matters to Social Justice for intervention and our clients use our services repeatedly.

Most cases settle

Did you know that most law suits settle on the doorstep of the court? Why then not mediate your case from the outset?  When the case is settled through mediation, the agreement can still be made an order of court.  80% of our cases settle during the first session.

Control over decisions

When ‘solutions’ are imposed on people, they are more likely to resist them.  A court may order certain specific conditions (such as a child visitation schedule) in a litigated divorce.  This may cause on of the parties to comply reluctantly, leading to on-going strife, friction and misery.

People who work together voluntarily to create a shared, mutually beneficial plan have a vested interest in the success of the plan.  There is a much higher likelihood of the parties abiding by such a mutual agreement and having less conflict in the future.

Easier

Mediation is the easier way.  It preserve’s relationships between the parties.

Mediation is right for you if:

• children are involved and you would like to act in the best interest of the children as soon as possible,
• you wish to save money in terms of legal costs,
• you do not want a long, costly and dragged out court process – you want to save time

SUPREME COURT OF APPEAL ENDORSES MEDIATION

Below is an extract from the judgment of Lewis JA in the case of S v Mr J and Mrs J handed down on 19 November 2010 in which the Supreme Court of Appeal unanimously endorsed the views expressed by Brassey AJ in Brownley v Brownley:

“I record too that the litigation has not been in any of the parties’ interests. Clearly, after Ms R’s death in particular, emotions ran high. All wanted to keep C with them. But had the Js not ambushed S at the funeral with papers in respect of proceedings in the Children’s Court, and had all concerned attempted to talk about her genuine best interests, they would not have spent nearly five years embroiled in a dispute about her residence. This was not only at great emotional cost to all, but also at great financial cost which none of them could really afford. Fortunately C’s interests have been served by Deysel who has acted pro bono. I endorse the views expressed by Brassey AJ in [Brownley] that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort. Legal practitioners should heed s 6(4) of the Children’s Act which provides that in matters concerning children an approach conducive to conciliation and problem solving should be followed and a confrontational approach should be avoided.”

Our mediators work for their own account.  This fee structure is a basic idea of what you can expect.  Please confirm the fees with the practitioners.

Registration fee of R670 when you submit the family referral form to Social Justice.  Then we ask parties to share the cost of the 2 hour session of R1200 per hour (therefore R1200 per party for the two hours).  In 80 % of our cases settle after one  or two meetings, 10% require a third session.  Then we draft the relevant documentation.  This can vary between R500 and R2950 (Shared 50/50).

Example

Registration Fee : R670

2 Sessions – 4 hours : R4800

Settlement : R2950

Total Cost : R8420

Each party pay 50% – R4210

Only other costs to consider is should you appoint an attorney to assist with making this agreement an order of court.

Mediation Rules

Amendment of Rules Regulating the Conduct of the Proceedings of Magistrates’ Courts in South Africa (Regulation Gazette No. 10151 of 18 March 2014). Please see an excerpt from the Rules below:

“Rule 84”.        “Fees of Mediators”

• Participating parties in mediation are liable for the fees of the mediator, except where the services of the mediator are provided free of charge.

• Liability for the fees of the mediator must be born equally between opposing parties participating in mediation. Provided that any party may offer or undertake to pay in full the fees of the mediator.

No, parties have the right to be represented if they want to be, but this is not obligatory. Parties who are represented will be responsible for the fees of their legal practitioners. It is the task of the mediator to ensure a fair and structured process with a level playing field, irrespective of whether parties are represented by lawyers or not. Parties can also request that a friend or family member be allowed to be present during the mediation to lend support.

Yes, matters can be referred for mediation at any stage during the court process before a judgement has been given.  You can even refer a matter to mediation before the start of any litigation.

Simple disputes can often be resolved within a few days. More complex disputes may take a few weeks.

If the agreement has been made an order of the court then it can be enforced through the Sheriff of the Court in the same way as any order of a civil court. If it has not been made an order of the court, then it is enforceable in the law in the same way as any other legal binding agreement.

Parenting coordination is a quasi-legal, quasi-mental health dispute resolution process which combines assessment, conflict management, education, facilitation, case management, mediation and limited decision-making functions.

A PC is generally appointed by the court for those high conflict parents who have demonstrated an inability or unwillingness to make parenting decisions on their own, comply with parenting agreements and orders, reduce child-related conflicts and protect their children from the impact of conflict.

When appointed by court order, the PC can proceed with parenting coordination in the best interests of the child.  This may include the issuing of directives – even in circumstances where one of the parties refuses to consult with the PC.

A PC may also be appointed by agreement between the parties to issue directives which are binding on the parties.

The delegation of decision-making authority is a serious matter and only qualified professionals may be appointed to this role.

A PC may be requested by the court to provide a written or oral report to the court.

The parenting coordination process is child-focused and practiced by experienced mental health and/or legal professionals, with specialised training and experience in conflict management, working with high conflict personalities, facilitating child participation, mediation and the issuing of directives.