DIVORCE & MEDIATION
Prior to obtaining a divorce, couples frequently choose to resolve many, if not all their marital disputes through mediation. Mediation is a well-established form of dispute resolution and allows for a harmonious method of dealing with a divorce. It allows for both spouses to be directly involved in drawing up a settlement agreement that caters to their specific needs and proves to be effective in terms of both time and money. Every aspect of a divorce, from the division of assets to the question of maintenance can be mediated. Important to note is that mediation requires that both spouses want to resolve their issues without resorting to litigation. The parties can agree to mediation before or after legal action for divorce has been instituted
‘Mediation will work for you if: you and your partner agree that you can negotiate in a fair and equitable manner; children are involved and you would like to draft a parenting plan;
you wish to save money in terms of a contested divorce; and/or you want your differences to be resolved as soon as possible.’ However, mediation will be ineffective in instances where a significant power imbalance exists between the parties to the marriage; where there are serious allegations of substance abuse or where a party’s mental health is being questioned. Should mediation be unsuccessful, the mediator may not disclose any information provided during the mediation sessions at a trial. Mediation is a voluntary process therefore it can be terminated at any stage by either party or by the mediator if they are of the opinion that the process is no longer serving its purpose
Mediation involves an independent third party (mediator) who will work with both parties to reach a settlement agreement and will also advise the parties on the various scenarios they could face if the matter goes to court. The mediator is a neutral third party who either has a legal or psychology background. A mediator does not have the final say in the case and has no authority to make any decision or force any order upon the parties – the decision-making power remains with both parties and the mediation process is without prejudice and the mediator merely offers guidance in making reasonable decisions regarding the division of assets and the maintenance of any minor children involved.
After the settlement agreement is drafted, the parties may request their respective attorneys to review it and if minor children are involved, the Office of the Family Advocate should also review it and provide the court with an opinion as to whether the arrangements are in the best interests of the child. The agreement is then attached to the summons and served on the party who chooses to be the defendant in the matter. Thereafter, the plaintiff will enrol the case on the court roll and finalise the divorce, incorporating the settlement agreement in the final divorce order.
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