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THE CASE FOR MEDIATION AS AN APPROPRIATE PROCESS OPTION TO
EFFECTIVELY RESOLVE MARITAL DISPUTES
PRESENTED BY MAHOMED ESSACK
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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.
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THE ATTORNEYS
Attorneys being the first point of contact with the parties
No prospects of reconciliation Civil Marriage Proprietary consequences Children Contact Maintenance
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THE JOURNEY AS WE KNOW IT
Lasts from 18 months to 3 years Consultations Letter writing Pleadings are extensive Court appearances Costs
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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
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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
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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.”
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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
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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.
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WHAT IS MEDIATION?
Voluntary process Neutral third party Facilitate discussion between the parties Settlement acceptable to the parties
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MEDIATION IS NOT
Therapy Marriage Counselling Wishy-washy process Adjudicating the matter A solution to all disputes
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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
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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
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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
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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
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THE LEGISLATIVE LANDSCAPE
The Children’s Act 38 of 2005 entrenches mediation in family law when minor children are involved.
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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
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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
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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
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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
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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