This recent case has set a new precedent for the divorce process in South Africa.
The judgement handed down by acting Judge Brassey in the South Gauteng High Court (BrownleeVsBrownlee 2008/25274)emphasized that divorcing parties have a DUTY to FIRST MEDIATE a dispute and in fact their attorneys have an obligation to encourage their clients to mediate to try resolve their issues before they embark on litigation.
The judge marked his disapproval of hindering the court by
a)capping the fees of the attorneys on both sides because they failed to advise their clients to attempt mediation,
b)made each party bear his or her own costs.
“How much richer would this solution have been had it emerged out of a consensus-seeking process rather than in adversarial proceedings in which positions were taken up that gave every appearance of callousness and cruelty. This is but an instance of what mediation might have achieved. In fact, the benefits go well beyond it. In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached.”– (Brownlee v Brownlee August)