When South Africans think of divorce it usually is coupled with thoughts of costly litigation. It is said (possibly unfairly so) that the reason behind acrimonious Matrimonial litigation is due to the opposing attorneys who identify too closely with their clients interests.
An alternative to costly litigation is a process of Divorce Mediation in which the parties attempt to resolve their differences through a process of mediation.
In Van den Berg v Le Roux ([2003] ALL SA 599 (NC)), Kgomo JP ordered that the parties be obliged to mediate the issues between them and that “only subsequent to the conclusion of the mediation process could either party approach a competent court” .
Shortly after the Van den Berg decision, the Zimbabwe High Court gave its judgment in G v G (2003 (5) SA 396 (Z) at 412D-E) where the court found “very clearly and definitely, that there was a greater satisfaction among both children and parents in those cases where mediation was used as opposed to an adversarial approach.”
In Townsend-Tuner and Another v Morrow ([2004] ALL SA 235 (C)) the court seemed to follow the decision in the Van den Berg case and ordered that the parties were to attend mediation and had to continue with such mediation for a period of at least 3 months or for at least 4 mediation sessions.
Due to the aforementioned decisions most Attorneys advise clients on the Divorce Mediation process before litigation commences. Other Attorneys however have taken the view that mediation is merely a minor formality in the litigation process which they ignore and in some instances avoid completely.
The latter position has become the growing opinion among many legal professionals and as such, in 2009, Brassey AJ delivered judgment in Brownlee v Brownlee.
Brassey AJ found that “acrimony between legal representatives which can carry over from one case to the next, easily produces an over-identification with the client’s case and an attitude of win-at-all-costs”, he further found that attorneys must appreciate that “their advice is profoundly influential and shapes the demands being made and strategies used to achieve them”, and that attorneys should not labour under the illusion that clients are solely responsible for the stances adopted in litigation.
Brassey AJ ordered that the fees claimable by attorneys in matters where they have failed to advise or insist that the parties mediate, shall not exceed the costs recoverable on a party and party basis as taxed. The decision is a firm warning to all legal practitioners to avoid litigation in unnecessary circumstances and to advise and insist that clients at least attempt to resolve the disputes through Divorce Mediation.
Mediation is now recognised as a viable alternative to the conflict inherent in Matrimonial litigation. The courts have set out very clearly that parties who fail to attempt mediation where appropriate will receive little sympathy from the courts and their legal representatives even less so.
Nuno Palmeira
