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THE CASE FOR MEDIATION AS AN
APPROPRIATE PROCESS OPTION TO
EFFECTIVELY RESOLVE MARITAL
DISPUTES
PRESENTED BY MAHOMED ESSACK
THE THEME
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“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.
THE ATTORNEYS
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Attorneys being the first point of contact with the
parties
No prospects of reconciliation
Civil Marriage
Proprietary consequences
Children
Contact
Maintenance
THE JOURNEY AS WE KNOW IT
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Lasts from 18 months to 3 years
Consultations
Letter writing
Pleadings are extensive
Court appearances
Costs
THE MUD SLINGING
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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
THE AGGRESSION
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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
THE REALITY
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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.”
THE CASE AGAINST LITIGATION
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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
THE CASE AGAINST LITIGATION
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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.
WHAT IS MEDIATION?
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Voluntary process
Neutral third party
Facilitate discussion between the parties
Settlement acceptable to the parties
MEDIATION IS NOT
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Therapy
Marriage Counselling
Wishy-washy process
Adjudicating the matter
A solution to all disputes
THE CASE FOR MEDIATION
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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
THE CASE FOR MEDIATION
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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
THE CASE FOR MEDIATION
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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
THE CASE FOR MEDIATION
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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
THE LEGISLATIVE LANDSCAPE
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The Children’s Act 38 of 2005 entrenches
mediation in family law when minor children are
involved.
THE MEDIATOR AND THE MEDIATION
PROCESS
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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
THE MEDIATOR AND THE MEDIATION
PROCESS
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Language – not what you say but how you say it
Dealing with deadlock
Dealing with manipulation
Summarising
Outcome recorded in an agreement
AT WHICH STAGE OF THE DISPUTE IS
MEDIATION AN OPTION?
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Before or after legal proceedings are instituted
After close of pleadings and discovery of
documents
Pre-trial stage
On the steps of the Court
LIFE’S NOT PERFECT
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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
CONCLUSION
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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