Family matters: The attorney’s obligation to offer divorce mediation instead of litigation

Wednesday, September 15, 2021, 9:30
Author name
Henda Scott
Divorce Mitigation

Divorce can be a long, difficult and painful process. Lengthy legal proceedings not only add unnecessary financial pressure but can also exacerbate the emotional stress experienced by both spouses and their children.

Divorce mediation

Luckily there is an alternative to battling things out in court. Divorce mediation in South Africa is no longer just encouraged, it has actually been mandated since Mediation Rule 41A of the High Court came into effect in March 2020. 

What is divorce mediation? 

Divorce mediation is a form of alternative dispute resolution.

It is defined as the facilitated negotiation of a dispute conducted by an impartial mediator with the objective of arriving at a settlement. Divorce mediation thus involves structured discussions between both spouses, led by accredited divorce mediators. The aim is to reach a settlement agreement without the need for litigation.


What does a divorce mediator do? 

Whilst mediation is significantly less costly and time-consuming than litigation, it is not quite as simple as sitting around a table and letting the parties talk.

The purpose of divorce mediation is to allow the divorce mediators to take an active role in the negotiations and ask the right questions to ensure all the necessary issues are addressed while avoiding an unnecessary back-and-forth that could derail the divorce mediation process.

Discussions around the division of joint assets, custody of minor children and payment of maintenance are often emotionally charged. Therefore, it is crucial that the mediator is equipped with the necessary skills to manage these negotiations, pick up on escalating tension and, if necessary, diffuse explosive situations.

When should divorce mediation be considered?

Always. From March 2020, any attorney that fails to inform their clients of divorce mediation as an alternative to litigation may face penalties and costs orders against them.

So, while clients naturally enjoy certain protections and privileges under the law and have every right to use every legal remedy at their disposal, many points of contention that come up during divorce proceedings are actually better addressed with the help of an impartial third party (the mediator) than a magistrate.

Additionally, divorce mediation can speed up the divorce process. This is because the parties can plan negotiations around their schedules and don’t have to wait to secure a court date, which may take months.

Who can act as a divorce mediator? 

A legal background or qualification is not a prerequisite for becoming a divorce mediator. However, an understanding of certain legal concepts and processes is required during mediation proceedings, therefore attorneys are a natural fit for this position.

Of course, the emotional aspect of divorce mediation cannot be ignored. Prospective mediators should complete mediation training with an accredited mediation academy to fill in any gaps they may have in this arena. 

Divorce mediation training usually consists of theoretical and practical components. These components cover a variety of topics including the legal, financial, cultural, ethical and psychological aspects of family and divorce mediation.

Upon completion of such a training course, attorneys can apply for certification through The National Accreditation Board for Family Mediators (NABFAM) and then offer to act as a divorce mediator for their clients. 


As an attorney, it is your responsibility to obtain the best possible outcome for your clients. In the case of divorce and other family law matters, divorce mediation is definitely the preferable course of action. By becoming an accredited divorce mediator, you’ll be able to offer your clients a professional service that can get them results without the stress and cost of approaching the courts.



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