Family Law Mediation & Divorce Lawyer Alternatives
Why Choose Mediation Over a Divorce Lawyer??
Calming the waters
Considering a divorce lawyer alternative ? Family law mediation offers a faster, cheaper way to settle custody, assets, and maintenance—without courtroom battles
Mediation is an informal process where the parties meet with or without the assistance of legal representatives in the presence of a neutral third person and jointly attempt to resolve their issues.
If the parties reach a settlement a legally binding agreement is formulated between themselves whereafter they may approach court on an unopposed basis for an uncontested divorce.
All disputes between themselves are addressed at a mediation session and ultimately the parties themselves agree on how to manage issues relating to the Care and Contact of the children, Maintenance payable, Education, Preferable Medical treatment and Religious issues.
The fundamental benefit is that the parties conclude an agreement between themselves based on their respective circumstances and those of the children. It is important to note that during this process consideration will be given to the opinion of children depending on their age and maturity. It is further important to note that during mediation the appointment of experts such as social workers or play therapists may be employed should the parties so agree. The parties are therefore not precluded from obtaining expert advice during the mediation process.
The agreement is concluded by the parties themselves and not an independent third person.
Divorce Lawyers & Litigation: The Costly, Slow Option?
An acrimonious process
Litigation, in essence, comprises of three phases:
- The pleading phase
- The trial preparation phase
- The trial itself
During the pleading phases the parties and or their legal representatives exchange pleadings which includes Summons, Particulars of claim, a Plea and Counterclaim(if filed) and a Plea to the Counterclaim. In these documents the parties set out their respective claims and defense to the other parties’ claim.
After pleadings have closed the legal representatives commence trial preparations commence which include discovery of all documentation required at the trial to prove or disprove a claim, consult with necessary witnesses (which may include expert witnesses such as social workers, Psychologists or Reconstruction experts), gather all necessary evidence and prepare clients for trial.
The trial is conducted before a judge in the High Court or a Regional Magistrate in a Regional or District Magistrate Court. All evidence is presented to the Court in respect of claims and demands made by the respective parties and both parties and their witnesses are obliged to lead oral evidence and be cross examined by the other parties’ legal representatives.
The litigation process is rigid, formal and based on legal principles, statutory laws and prevailing legal authority(i.e Case Law).
Litigants are subjected to specific time constraints and other formal requirements. A contested matter may take anything from a year upwards to even 5 years or more.
Navigating Divorce: Court vs. Mediation
A Decree of Divorce may only be granted by a Court of Law. Divorces are granted either by a High Court or the Regional Court that has the necessary jurisdiction to hear the matter.
Divorce is an unfortunate reality which many of us experience in today’s challenging times. Reasons for divorce may include but are not limited to the following:
- Spouses no longer live together.
- Domestic, financial or emotional abuse has resulted in the breakdown of the marriage.
- Adultery.
- Failure and or neglect to financially maintain a spouse or contribute to the household.
- The parties have lost their love and affection for each other.
During a divorce all aspects and disputes relating to parental rights in respect of minor children and patrimonial interests in respect of matrimonial property are addressed and decided upon.
This may occur on an uncontested or a contested basis.
A contested divorce case is heard before a Judge or Regional Magistrate during which a trial is conducted by legal representatives acting on behalf of each of the parties at the end of which trail the presiding officer makes a ruling.
Mediation in contrast allows a third-party neutral person to assist the parties in reaching a voluntary settlement agreement which is then made an order of court.
The fundamental difference between the two processes is that in litigation a presiding official makes a ruling whereas in mediation the parties agree on a settlement between themselves which is then made an order of court.
Parental Rights & Responsibilities
Balancing our interests
It is necessary to consider the rights and obligations of parents towards their children during divorce proceedings. These rights and obligations include, for example, the following:
- Joint parenting of the children.
- Primary residency of the children.
- Contact of the non-primary parent with the children.
- Guardianship and day-to-day care of the children.
- Aspects relating to maintenance, medical, educational and religious matters of the children.
The above is generally set out either in a settlement agreement or a parenting plan both of which require consent by the Family advocate and court.
A contested Divorce matter is heard by a Court of law during which proceedings parties make demands against each other in respect of custody of the children, maintenance payable for the children and or spouse and patrimonial claims in respect of matrimonial property, investments, pension interests, policies and other assets.
At the conclusion of a trial a judge or magistrate will deliver a ruling which dictates how parental rights are exercised, specific contact rules with regards children and a directive in respect of division of the matrimonial property and other claims.
A court may, however, refer the issue of maintenance to the Maintenance Court for separate adjudication after the trial has been finalized. This will essentially cause further delays in obtaining financial assistance in the form of child maintenance.