10 Things to do in preparation for a mediation
Consider this, the more money you spend towards litigation, the less money goes to the family.
Mediation can be cost effective if you do your own homework and it is far better for you to agree upon the terms of an overall settlement than having to abide by a court order which is not tailor made for you and your family.
When going through the process of a divorce, courts recommend that parties first use mediation to reach agreement. What it important to remember is that both parties need to be accountable and transparent in order to tailor-make a plan for you and your family and should not be abused or misused as a fishing expedition or an opportunity to expose the other party.
Ultimately you are to both reach agreement so the onus is on you to consider what is fair and reasonable.
Here are things to consider in preparation for your mediation:
Mediation is a safe space.
The contract of agreement you sign with a mediator cannot be subpoenaed by the courts. All notes and documents from this process are privileged and this allows for frank and open discussion.
Agreeing on a mediator
Preferably decide on an accredited mediator or an independent person such a religious leader, or community leader – someone with business acumen.
You can approach the following bodies: Family Mediators’ Association of the Cape (www.famac.co.za), the South African Association of Mediators (www.saam.org.za) or the National Accreditation Board for Family Mediators (www.nabfam.co.za) to find a list of accredited mediators to choose from.
Funding of the mediation
Mediation is usually paid 50/50 by both parties. In the case where there is a dependent spouse, that spouse can make some contribution towards mediation and not necessarily pay 50% of the fees by agreement.
What is your marriage contract or pre-nuptial agreement, is it in community of property, or out of community of property without accrual, or out of community of property with accrual? Ensure that you have a full understanding of what the rights and requirements are of these contracts.
Assets & Liabilities
List your assets such as cars, property, furniture, jewellery etc. Also list your financial obligations and debt.. If you are concerned that this will affect your rights to child custody, be assured that you cannot be penalised for not having enough money so don’t inflate your expenditure or income.
Look at how much you earn and what the sources of your income are (salary, shares, investments, rental income etc.). Avoid emotion and stick to the facts, while it may be tempting to wish the other party to support you, especially if you did not initiate the divorce proceedings, it is critical to be transparent and reasonable in order for mediation to be successful.
Draw up an expense sheet with reference to your bank statement of not less than 3 months and look at your average monthly spend. Using an Excel document with filters is the easiest way to assess this objectively based on your statements.
If your spouse was the breadwinner and was providing you with an allowance, you need figure out if you will have to work after the divorce and what your requirements are to secure employment.
Also find out if your spouse was paying family expenses from their personal account or via a business or trust account.
If you find that you may have to work and you have children, ask yourself the following:
• Can you work at all?
• Can you work full-time?
• Your qualification and how marketable you are.
• Does your child have special needs?
• The number of years you have been out of employment.
• Your age
This list is not exhaustive but the above preliminary list will provide you with guidelines.
Child custody & contact
Consider what is in the best interest of the child when it comes to child care and contact. Dependent on the age and maturity of the child, the child’s view and their routine when making this decision.
Figure out if you will need buy or rent property after the divorce and whether there will be access to funds from the sale of an existing marital property.
Have a preliminary discussion with your attorney before the mediation.
During the process of mediation, each party is entitled to seek advice from their attorney before deciding on anything. Speak to your attorney if you feel bullied or pressured, do not just give in.
Once you have terms of a settlement in place, then get your attorney to draft those terms into an agreement and get advice from the attorney before agreeing to the settlement lock stock and barrel. This agreement is going to regulate your life and that of your children for a substantial period of time after the divorce.
The outcome of a mediation, the Mediation Summary, becomes binding once both parties have agreed and signed it. Once an agreement is reached, then such agreement is no longer privileged and either party may be held to those terms.
Mandy Simpson is the proprietor at Mandy Simpson Attorneys. This practice specialises in Divorce, Child & Family Law; E-Law & Cyber Security; Litigation & Dispute Resolution; Corporate & Commercial Law; Property Law & Conveyancing.
Mandy is an internationally accredited mediator and is a longstanding fellow of the International Association of Family Lawyers.