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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