(By Waren Thompson) Court battles can go on for months or even years, and can get very ‘ugly’. All sense of civility is usually lost, and lawyers battle it out, airing the couple’s dirty laundry to be judged in court.
In some cases, the litigation route is the only option – and you may need to hire a lawyer to make sure your interests are protected. However, if at all possible, you should try to go the route of mediation.
This is where both parties come to a mutual agreement through a trained negotiator experienced in divorce law. It is often much quicker and far less emotionally damaging than litigation.
Here are some of the benefits of mediation:
Mediation |
Litigation |
| Cost: Mediation is far less expensive than a lengthy court battle. Once your final agreements have been decided, they are shared by the lawyers and you only pay processing fees. | Cost: In most cases this can lead to fees of thousands to hundreds of thousands depending on the length of the court battle. |
| Time: Mediation can be completed in an average of five sessions. Once complete, the agreement can go to court and be finalised within weeks. | Time: Getting an initial court date can take up to a year in South Africa. Then there are the months that the court battle itself can take. |
| You determine the outcome: Mediation is an agreement reached that serves, as best as possible, the needs of both parties. You decide what that is rather than the judge. | Judge determines the outcome: If you cannot reach a decision, a judge will make it for you. |
This decision could be better or far worse than if you had both found a middle ground.Constructive emotionally: While never pleasant, mediating a divorce is constructive and creates a workable agreement. There are less negative feelings created.Destructive emotionally: In court the gloves usually come off, and all dirty laundry is aired. It is hard to recover from this attack from someone you cared about and vice versa.
What if no agreement can be found?
Yet even though things are more amicable and rational with mediation, there are cases where a couple cannot reach a middle ground. At this point you may have to litigate your divorce.
Here are some scenarios of when it may be better to litigate rather than mediate:
Decision is not mutual
If one party does not want a divorce, you cannot sit down and agree to its terms.
Trustfulness and truth
If your partner is hiding money in offshore accounts and is busy moving assets before you have even filed papers, then they would not be willing to have an honest open, mediated settlement. Lawyers may be necessary to track down assets and ensure the truth is revealed.
Abusive/unstable partner
If your divorce is due to abuse or a partner who is not mentally stable, then the likelihood of reaching an amicable settlement with them is unlikely. In this case, having lawyers represent you and keeping your distance will provide less stress and trauma for you.
Children and mediation
I would always recommend that if parents divorce, they seek mediation. When children are involved it is in everyone’s best interests to reach an agreement with as little resentment as possible. Even if your marriage/union has ended, you will always be connected to your ex through the children you both have together.
The children did not choose to be born into the family, and they deserve two fully equipped and able parents who can meet their needs.
Divorce issues between parents can stop a child from ever reaching their full potential. The truth is that the damage a divorce will do to a child depends on how well the parents are able to come together and still be parents afterwards.