To mediate or not to mediate … that is the question

Taking the huge decision to divorce causes feelings to vacillate between being absolutely certain about wanting a divorce to wanting to ‘try again’ at making things work. Whether divorcing or separating, many issues need resolution. The trauma and uncertainty can cause confusion over where to go, to mediate or litigate. The following is a brief guide to whether mediation is a good option for you and your spouse:


There are no fixed rules for determining when mediation will work and it is not always possible to know without trying. Generally the earlier a dispute goes to mediation, the more likely it is to be equitably settled, however if disputes continue for an extended period of time, parties become committed to their positions and less able or willing to consider other points of view.


When deciding whether or not to try mediation, consider the following factors:


1. If you and your spouse or partner do not want to engage in an adversarial court battle to ‘win’ an outcome, it is better to mediate a settlement.

2. Mediation is indicated if you and your spouse want a trained person to help identify and discuss the issues while you retain control over the decisions and the settlement agreement;

3. If you want a private solution that is flexible and informal, mediation is the way to go.

4. Where you and your spouse/partner want to, or have to retain some sort of relationship, especially when there are children involved, mediation is recommended.

5. If both are willing to actively participate in the mediation, this is a good indicator for success.

6. Can both parties be open and honest with each other and the mediator? It is helpful, although not essential, for the parties to trust each other. ‘Good faith negotiation’ means full transparency and that couples engage with each other honestly in the process. This means that relevant information to the process needs to be disclosed accurately. Mediation will not be successful in cases where parties try to hide assets.

7. If both parties are interested in reducing the traumatic impact on themselves and their children, mediation is indicated.

8. Both parties must have the mental capacity to be capable of making their own you and your decisions.

9. If both parties want more control over the decision-making process, mediation is a better option.

If you and your spouse meet the criteria listed above, you are good candidates for the mediation process and can successfully divorce without an attorney.

When is mediation contra-indicated?

Disputes do not always lend themselves to mediation in cases when:

· One spouse wants to mediate and the other wants to go to court

· Domestic violence has been present in the relationship and there is a fear of violence or where mediation would not be safe.

· One or both spouses are acting in bad faith, for example when they may be using mediation as a delaying tactic or to avoid disclosing all the financial information to the other spouse


The mediator will check in from time to time and if the process is found to be prejudicial to either of the parties or not likely to come to an acceptable and equitable conclusion, mediation will be stopped and the couple referred to the courts. As always, communication is key.

If you feel that mediation is for you, please contact me by calling 0828255505 or emailing me at karenspurrier@icon.co.za

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