At Louis Gishen & Associates Inc., we recognise that divorce is one of life’s most challenging transitions — legally, financially, and emotionally. Fortunately, couples today have alternatives to drawn-out, expensive litigation. One such alternative is divorce mediation — a constructive process facilitated by a neutral professional that helps separating spouses reach mutual agreement on key issues.

In the South African context, mediation is not only encouraged by the courts but is also embedded in policy through the Mediation in Certain Divorce Matters Act 24 of 1987 and reinforced under Rule 41A of the High Court Rules, which requires parties to consider mediation before litigation proceeds.

When properly managed, mediation can preserve civility, protect family relationships, and produce more sustainable outcomes. Below are practical steps to ensure that your mediation process remains amicable and efficient.

1. Agree on the Mediation Framework from the Outset

Before embarking on mediation, both parties should agree on fundamental parameters:

• Appointment of a suitably qualified mediator (for instance, a Family Mediator accredited by a recognised body);
• The scope of issues to be addressed (custody, access/contact, maintenance, division of assets, etc.);
• The procedural framework and scheduling of sessions; and
• The overall goals of mediation.

Our matrimonial and alternative dispute resolution team at Louis Gishen & Associates Inc. emphasises that an agreed structure at the outset allows the process to unfold smoothly, minimises disputes about process, and builds mutual trust.

2. Come Prepared and Stay Organised

Preparation is key to efficient mediation. Each party should assemble and exchange all relevant information in advance:

• Financial documents (bank statements, tax returns, salary slips);
• Asset and liability schedules;
• Proposals or frameworks for settlement; and
• Any relevant communication records.
  

Under South African law, full and frank disclosure is essential for any divorce settlement — failure to disclose may render an agreement voidable. Adequate preparation ensures that mediation discussions focus on resolution rather than on fact-finding.

A useful practical tip is to prepare a short agenda for each session. By having clear objectives, parties can keep meetings focused and constructive.

3. Focus on Interests, Not Positions

Mediation is not about “winning at all costs” but about finding workable solutions. Parties should focus on underlying interests (for example, securing stability for children or achieving financial independence) rather than rigid positions (such as insisting on a particular asset).

This approach aligns with modern South African family law principles, which prioritise the best interests of the child (as per section 28 of the Constitution and the Children’s Act 38 of 2005) and fair outcomes that endure beyond the divorce decree.

Our team has seen that when parties discuss the “why” behind their preferences, creative and mutually acceptable solutions often emerge.

4. Maintain Open and Respectful Communication

An amicable tone is essential throughout. Effective mediation relies on parties’ willingness to:

• Speak respectfully and listen actively;
• Avoid attributing blame or revisiting past grievances; and
• Consider joint communication protocols (for example, email summaries or mediator-assisted correspondence).

Where communication breaks down, mediators play a vital role in reframing discussions and keeping focus on resolution.

5. Set Realistic Expectations and Timelines

Mediation is generally faster and more affordable than litigation, but it still requires time and patience. Setting realistic timelines and progress reviews helps maintain efficiency.

At Louis Gishen & Associates Inc., we encourage clients to:

• Identify target dates for draft settlement agreements;
• Prioritise unresolved issues as the process continues; and
• Avoid rushing decisions under emotional or financial pressure.

Remember: efficiency results from structure and clarity, not from haste.

6. When and How to Involve Legal Advice

Although mediators remain neutral, each party should obtain independent legal advice during key stages of mediation. Legal counsel ensures that:

• Your rights under South African family law (maintenance, custody, accrual, proprietary aspects) are understood;
• Draft settlements comply with statutory requirements and the parties intention; and
• Agreements are formally recorded and made enforceable by having such settlement agreements and decrees of divorce made an Order of Court.

Our matrimonial law team plays a supportive role by not only facilitating the mediation process but by reviewing or drafting settlement proposals, advising on implications of property regimes (for example, in or out of community of property), and converting mediated outcomes into legally valid orders of court.

In Conclusion

A structured, transparent, and respectful mediation process can transform a potentially adversarial experience into one focused on closure and healing.

At Louis Gishen & Associates Inc., our extensive experience in family law, divorce mediation, and alternative dispute resolution positions us to guide clients through every stage of the process — from preparation to finalisation in court.

If you wish to explore mediation options or discuss the details of your situation in confidence, contact our offices. We are committed to helping you achieve a dignified, efficient, and sustainable resolution.