THE CASE FOR MEDIATION AS AN APPROPRIATE PROCESS OPTION TO EFFECTIVELY RESOLVE MARITAL DISPUTES

1. THE CASE FOR MEDIATION AS AN APPROPRIATE PROCESS OPTION TO EFFECTIVELY RESOLVE MARITAL DISPUTES PRESENTED BY MAHOMED ESSACK

2. THE THEME • “Moving Forward to Develop an Appropriate Response to Marital Conflict in the Muslim Community”, is apt in the context of where we presently find ourselves.

3. THE ATTORNEYS • Attorneys being the first point of contact with the parties • No prospects of reconciliation • Civil Marriage • Proprietary consequences • Children • Contact • Maintenance

4. THE JOURNEY AS WE KNOW IT • Lasts from 18 months to 3 years • Consultations • Letter writing • Pleadings are extensive • Court appearances • Costs

5. THE MUD SLINGING • Correspondence and pleadings are generally accusatory, maligning and disparaging of each other • The Defendant has failed to treat the Plaintiff in a manner befitting a wife/husband • The Defendant makes the Plaintiff’s life miserable and intolerable • The Defendant practiced witchcraft on the Plaintiff

6. THE AGGRESSION • We will punch holes in their argument • We are armed with sufficient facts to shoot down their argument • Our Counsel’s argument will blow them out of the water

7. THE REALITY • Brassey AJ – Brownlee Judgment • (MB –v- NB 2010 (3) SA 220 GSHC): • “Marriage is, typically born out of such love and solemnized with such hope that it’s termination by divorce cannot but be tragic. But the death of this marriage, or at least the manner in which the last rites have been pronounced over it, represents a tragedy of an especially painful sort.”

8. THE CASE AGAINST LITIGATION • Parties may abuse the litigation process • Adversarial in nature • Pleadings are extensive – time delays • Waiting on experts and the Office of the Family Advocate to conduct interviews with the parties and their children leads to extensive delays • Communication is formal and the parties voices, and importantly the voices of the children get lost in the correspondence and pleadings

9. THE CASE AGAINST LITIGATION • Relationships between the parties and their children may become strained or even severed due to the adversarial nature. • Lack of suitably experienced attorneys or advocates in the field of family law. • Discourages “working” relationship between the parties.

10. WHAT IS MEDIATION? • Voluntary process • Neutral third party • Facilitate discussion between the parties • Settlement acceptable to the parties

11. MEDIATION IS NOT • Therapy • Marriage Counselling • Wishy-washy process • Adjudicating the matter • A solution to all disputes

12. THE CASE FOR MEDIATION • Quran and Sunnah • Purpose of Sulh (compromise, settlement or agreement between the parties to a dispute) is to end conflict and hostility between the parties so that they may conduct their relationship in peace • Social cohesion • Less acrimony

13. THE CASE FOR MEDIATION • Non adversarial • The mediation process is conducted in an informal setting and is private and confidential. • Without prejudice • Communication is improved as the parties are not communicating formally through their attorneys • Voluntary process • Less intimidating

14. THE CASE FOR MEDIATION • The mediation process does not take time to convene • Disputes are resolved speedily • The parties avoid exorbitant costs associated with litigation • Promotes access to justice especially for the more disadvantaged spouse

15. THE CASE FOR MEDIATION • The outcome of the process is in the hands of the parties • The parties feel empowered and are more likely to comply with their own agreements • Mediation, even if it is unsuccessful may result in the narrowing down of the issues to be adjudicated

16. THE LEGISLATIVE LANDSCAPE • The Children’s Act 38 of 2005 entrenches mediation in family law when minor children are involved.

17. THE MEDIATOR AND THE MEDIATION PROCESS • Neutrality • Mediators facilitate and assist parties to identify their needs, clarify issues, and explore solutions • Create an environment for the parties to communicate. • Controls the process – watch the dashboard • Content and outcome in the hands of the parties • Personality of the mediator • Insight into the emotional and psychological effects of divorce

18. THE MEDIATOR AND THE MEDIATION PROCESS • Language – not what you say but how you say it • Dealing with deadlock • Dealing with manipulation • Summarising • Outcome recorded in an agreement

19. AT WHICH STAGE OF THE DISPUTE IS MEDIATION AN OPTION? • Before or after legal proceedings are instituted • After close of pleadings and discovery of documents • Pre-trial stage • On the steps of the Court

20. LIFE’S NOT PERFECT • How do we manage the disputes that may arise from a mediated settlement? • If the parties are unable to make a joint decision in respect of the minor child where a joint decision is required, or any dispute arises between the parties in respect of any other major issues concerning the minor child’s welfare, such disputes shall be referred to a mediator for mediation in terms of the provisions set out below:- • In the event of the mediation being unsuccessful for whatsoever reason, either party may thereafter approach the Court for adjudication of the issue in dispute

21. CONCLUSION • Mediation works • It is a practical and effective option • In line with Quraan and Sunnah • Intention to please Allah (SWT) in all aspects of our lives