At STBB, our experienced team of family law experts aim to help you resolve your divorce as quickly and seamlessly as possible. Introduced in 2020, Rule 41A of the Uniform Rules of Court signifies an important shift in how civil litigation – including divorce proceedings – is approached in South African law.
Designed to encourage dispute resolution through mediation, Rule 41A mandates parties to formally consider mediation as a means to resolve their disputes before initiating litigation. Accordingly, in any new action or application, a party who issues a summons or notice of motion, must serve a notice on the other party indicating whether or not they agree to mediation. Thereafter, the opposing party must respond by agreeing or declining to mediate.
Undoubtedly, divorce can be an emotionally and financially draining process. In the context of divorce, Rule 41A encourages spouses to explore mediation as a mechanism to resolve the details of their divorce outside of a courtroom and avoid drawn-out and costly litigation. Specifically, mediation can be particularly effective in negotiating maintenance, dividing shared assets, creating a parenting plan, and maintaining amicable communication post-divorce.
If the parties agree to mediate, an accredited mediator – a neutral and independent third party – will facilitate discussion and resolution. Encouraged by the mediator, the parties should identify the dispute/s, formulate opinions, and attempt to reach mutual agreement. If mediation fails, or if either party refuses to mediate, the matter can proceed through litigation. Often, this is the case where the parties are married in community of property or where one party’s wealth has grown significantly during the course of the marriage.
While Rule 41A promotes the use of mediation, it does not mandate it. Instead, it ensures that mediation is formally considered to preserve the voluntary nature of the process. Failure to reasonably engage in mediation, however, may lead to a punitive cost order as the court can take note of non-engagement when awarding costs. Crucially, non-compliance with Rule 41A may result in the non-compliant party receiving a notice of an ‘irregular step’ from the opposing party, potentially leading to additional delays and costs.
Ultimately, mediation provides a sound opportunity for divorcing couples to resolve matters in an expeditious and cost-effective fashion. In addition to cost savings, mediation maintains a greater degree of privacy than traditional litigation, encourages less adversarial outcomes, helps preserve co-parenting relationships, affords the parties more control over the process, and promotes sustainable resolutions.
If you’re considering divorce, speak to our dedicated divorce attorneys about whether mediation might be the right path forward. For expert legal guidance you can trust, contact us at familylaw@stbb.co.za today.
