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Solutions & Options

Mediation

In 2014 there was a notable rise in Mediation services being a select option for Parties. People are becoming more independent and outspoken in their decisions and choices and enjoy as much control of their environment as possible.

The divorce mediation is in the hands of the Parties to a certain level, a divorcing couple works with an unbiased mediator who helps both parties come to an agreement on all aspects of their divorce.

The mediator should have an accreditation with any of the governing bodies in the RSA or an International ADR accreditation and must be extremely well-versed in Divorce and Family law.

In addition, it is critical for the mediator to be neutral and not advocate for either party.
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Both parties still are advised to consult with an attorney to get full disclosure of their rights before they start the mediation; as the mediator is not an advisor and there to assist with the disputes and convert it into a MOU(Memorandum of Understanding) prior to  the final divorce settlement agreement and parenting plan.
Here are a few guidelines to consider if mediation is the solution for you:
  • It may result in a better long-term relationship with your ex-partner since you will not “fight” in court.
  • Be easier on children since the divorce proceedings can be more peaceful.
  • Expedite an agreement.
  • Reduce expenses.
  • Help you stay in control of your divorce because you are making the decisions (and the court isn’t).
  • Allow for more discretion. Mediation is private; litigated divorce is public.
  • It is reportedly a better, less contentious, less expensive and more “dignified” way to get a divorce.
In mediation it is the role and goal of the mediator  to get the parties to come to an agreement .

The mediation is dependent on the parties commitment to move on with their life. Remember, the mediator is not a counsellor.

Mediation is the better option to preserve unnecessary expenses influencing and risking the various fees of professionals  “eating into the Estate” as other options may bear such burden.

Weigh divorce options carefully. The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your partner to make decisions and both of you are honest and reasonable, then mediation or the collaborative method will work well.

Litigated Divorce

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The option to litigate is common. In previous days, the majority of divorcing couples chose the model of a  litigated divorce.

“Litigation” is a legal term meaning carrying out a legal process.

Keep in mind, though, “litigated” does not mean the divorce ends up in court. In fact, the vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement.

Why are lawsuits and legal processes  part of divorce? Because contrary to popular belief, divorce usually does not involve two people mutually agreeing to end their marriage. In 80 percent of cases, the decision to divorce is unilateral –one party wants the divorce and the other does not.
That creates an environment of confrontation and may lead to a mud-slinging cycle.

The oppositional situation right from the start often disqualifies mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.

Clearly, if you are starting out with a confrontational and highly emotionally charged situation, the chances are very high that collaboration or mediation might fail.

The most important and most difficult parts of any divorce are coming to an agreement on care and contact with the children, division of assets and liabilities and maintenance payments.

Although you want your attorney to be a highly skilled negotiator, you don’t want someone who is overly combative, ready to fight over anything and everything. Keep in mind your budget and their fee mandate for every instruction and action they take . An overly contentious approach will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, and especially the children as the affordability for various luxuries and necessities may be adversely affected.

Remember: Most divorce attorneys (or at least the ones I would recommend) will strive to come to a reasonable settlement with the other party. But if they can’t come to a reasonable settlement or if the other party is completely unreasonable then, unfortunately, going to court, or threatening to do so, might be the only way to resolve these issues.

If you have tried everything else, and you do end up in court, things can get really offensive and hostile. Negotiations and compromise move to the back burner. Their new job is to “win” and get the best possible outcome for their client.

And don’t forget, once you’re in court, it’s a judge who knows very little about you and your family that will make the final decisions about your children, your property, your money and how you live your life. That’s a very big risk for both parties to take –and that’s also why the threat of going to court is usually such a good deterrent.

Collaborative Divorce

Collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court for solutions in an order from the court judiciary.

During a collaborative divorce both you and your partner will each hire an attorney who has been trained in the collaborative divorce process.

The role of the attorneys in a collaborative divorce is quite different than in a traditional litigation sphere of divorce.

Each attorney advises and assists their client in negotiating a settlement agreement. You will meet with your attorney separately and you and your attorney will also meet with your partner and his attorney.
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The collaborative process may also involve other neutral professionals such as a divorce financial planner and a familyprofessional;who will help both of you work through your financial concerns and a coach or therapist /social worker;who can help guide both of you through care and contact arrangements with your children;the parenting plan and other emotional issues.

In the collaborative process, you, your partner and your respective attorneys all must sign an agreement that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened. 

If this happens, both you and your partner must start all over again and find new attorneys. Neither party can use the same attorneys again!

Even if the collaborative process is successful, the applicant in the divorce will usually have to appear in the applicable court so a judge can issue the divorce order. This legal process can be much quicker and less expensive than previously used traditional litigation if the collaborative process works.

In collaborative divorce, just as in mediation, all financial information (income, assets and liabilities) is disclosed voluntarily. Often the partner controls the “wallet,” and often another partner is generally unaware of the details of their financial situation.

Do find more advice in case of:
  1. You suspect your partner is hiding assets/income and you want a fair and even distribution.
  2. Your partner is hazardously manipulative and domineering, and you have trouble speaking up or you’re afraid to voice your opinions.
  3. There is a history or threat of domestic violence (physical and/or mental) towards you and/or your children.
  4. You or your partner has a drug/alcohol addiction or any other addiction or weight bearing impairment that will negatively affect your judgement.

Do-It-Yourself Divorce

The best advice I can give you about Do-It-Yourself Divorce, is DON’T Do-It-Yourself!

Divorce is very complicated, both legally and financially.

You risk easily making mistakes, and often those mistakes are irreversible.

The only scenario I can envision when a Do-It-Yourself divorce may make any possible sense, might be in a case where the marriage lasted only two or three years and there are no children, little or no assets/debts to be divided, comparable incomes and no maintenance.

In a case like that, a Do-It-Yourself divorce could be accomplished quite quickly and inexpensively.

Nevertheless, I would still highly recommend that the parties consult a mediator to establish a safe space with unbiased guidance or seek the advice of a separate attorney to review the final documents.

Contact Us

Office Number: 079 496 7164
Marici M Corneli: 082 254 1677
854 Frhensch Street
Moreletapark
0044 Pretoria (Tshwane)
Gauteng
South Africa
 

About Marici

Marici Corneli is an architect of change in the field of Mediation. She journey’s alongside people in Mediation assisting them in their way forward. Her motto is:

“Let`s get understanding and closure with every successful agreement in every mediation we journey through.” – Marici

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