In describing a divorce matter before her in 2019, some five years after the commencement of the divorce action, Kubushi J said:

“The parties have, since 2014, been involved in acrimonious divorce proceedings which to date          are still pending.”

She could not have described a common divorce matter any better, her observations are actually very telling– divorces are often acrimonious, petty, emotionally and economically taxing, vacillating and lengthy. Sadly, often such divorces involve minor children who more than often than not, bare the brant at the insistence of those who ought to protect them– their parents.

This article therefore calls for a reconsideration of divorce actions and litigation, particularly, Alternatively Dispute Resolution (ADR) in a form of mediation and/or arbitration.

It is accepted that Alternative Dispute Resolution may not work for all divorcing couples especially if there is an involvement of domestic violence, however, in a general and broader sense– ADR consideration is called for.

WHY MEDIATION

A classical important advantage of mediation is that it allows divorcing parties greater control over the consequences of their divorce. They are actively involved in the process and can greatly influence important decisions related to their divorce and the time involved in amicably resolving their disputes and viably solving the matter timeously.

GENERAL STAGES OF DIVORCE MATTERS

Typically, couples, before turning on each other, will make attempts to “fix things” between themselves, this may include consulting senior family members and engaging in marital counselling. This aspect makes is sensible to consider and call for alternative dispute resolution in a form or mediation.

WHO IS INVOLVED AND THE PROCESS

Divorce mediators and arbitrators are well trained and competent professional chosen by the couple themselves and can help spouses to set aside acrimonious emotions and make rational decisions that will help to bring the divorce to finality in a speedy, fair, and equitable way and terms.

The process involves collecting background information so that at least each spouse is aware of the position of the other and that there is at least, a clear picture of all the issues and disputes. They assist in that it includes consideration and allows for a more concise negotiation.

Once the issues are outlined and properly established, negotiations follow with a view of reaching a mutual compromise or settlement. All this takes place with the assistance of the mediator.

THE NEGOTIATIONS STAGE

It always proves beneficial when parties negotiate with a view of reaching a mutual compromise and not for the sake of getting more than the other spouse. Thus, mediation negotiations can assist couples to brainstorm and evaluate their options in a manner that is fair and equitable based on the marital regime that the couples are married in.

Once spouses have reached an agreement about the main issues relating to their divorce, often, this includes the division of assets and the minor children’s care and contact. The mediator can assist the souses to draft a contract commonly known as a Deed of Settlement– it becomes more beneficial if the mediator assisting the spouses is a practising attorney as it becomes more beneficial if the mediator is an attorney as that becomes handy when the divorce mediation gets to this stage.

The Deed of settlement can go as far as dealing with how the divorce action is to be instituted and finalized. Once the divorce is settled and the agreement duly signed by both spouses, one of the parties can issue summons and the matter will be finalized with the parties asking the Court to make their agreement an order of Court.

OUTCOMES/BENEFITS

The results with including mediation in pursuit of a divorce is that, spouses save thousands of money and precious time. This is favourable for them financially. The spouses also save themselves from unnecessary heartache and emotional turmoil, as well as their minor children if there is any involved.

It thus goes out that, if spouses have decided to get divorced and in the meantime want to protect their loved ones, either emotionally and financially as well as to be effectively empowered on the outcome and influence of their divorce process, divorce mediation assisted by competent professionals such as attorneys is a must.