ADR in South Africa has become a major tool in recent years in settling disputes between parties and particularly during the COVID-19 pandemic when delivery of justice initially ground to an almost complete halt and access to the courts were limited. 

 A number of breakthrough developments in ADR have assisted parties to family law disputes to endeavour to resolve their disputes through mediation and find their own solutions, assisted or unassisted by legal representatives – 

    • Various pilot projects have been initiated in family law matters where mediation has to take place at certain stages of the litigation.  
    • The Family Advocate, as part of its duties when dealing with disputes relating to children, also has an obligation to consider mediation of these disputes.
    • Rule 27 has recently been promulgated in the High Court obliging all parties when entering into litigation to fill in a form in which they advise whether they will agree to mediate or not at certain stages of the process.  This directs parties’ minds to resolving the matter at various stages of the proceedings.
    • Case law has developed where the judges encourage alternative dispute resolution attempts at various stages of family law proceedings.
    • The Law Commission is busy with an omnibus type issue paper and recommended legislation in the form of a bill in which various aspects of ADR are dealt with, for example, 
      • mediation / compulsory mediation
      • arbitration in family law matters
      • parenting co-ordinators
      • family forums / neighbourhood forums
      • other forms of ADR

It is of course useful and very meaningful to have obtained legal advice on the parameters of a party’s claims before entering into ADR processes so as to know what the likelihood of your awards in a court would be if you were to go to court, merely to ground your proposals that you will furnish in mediation against the reality of the possible future situation if the dispute remains unresolved.  It is furthermore useful to receive advice during the mediation process on your claims and/or the discussions during the mediation, so that you are equipped to take the best informed decision during mediation the very important life decision of settlement that will determine your life forward.  

There are various forms of mediation, for example mediation between the parties, mediation whilst the parties sit apart, mediation supported by legal representatives and so on.  Each situation is different and in each situation you must make your personal choice as to what ADR process would suit you best and whether you are able to interact with your mediator and/or arbitrator.  It is a very personal relationship and trust is essential.

Arbitration in family law matters, although currently excluded in terms of the Arbitration Act, is part of the 26 SALRC Issue Paper 31 and is being considered by the law commission at present.  Informal arbitrations on discrete issues are however entered into.  Often a financial aspect of the dispute is referred to informal arbitration to resolve.  Arbitration is an alternative to expensive extended litigious court proceedings in order to achieve fair resolution by an impartial arbitrator without delay or unnecessary expense.  

It is flexible and private.  Parties may craft the procedures, identify the issues, limit time periods, maximize the exploration of alternatives, and it assists the parties in reaching agreement at speed.

It creates party autonomy, subject to public interest issues and balances powers.  

Discrete issues may be heard quickly which may encourage overall settlement.  

There would be less need for interim proceedings, updating of valuations or evaluations, reinvestigating financial information and leakage of financial resources.

The demand for ADR has increased during the pandemic and parties’ minds have been focused on trying to resolve issues.