By Clement Marumoagae
The promulgation of the Jurisdiction of the Regional Courts Amendment Act 31 of 2008 had the effect of ‘eradicating’ Divorce Courts, which were subsumed into regional magistrate’s courts, which were granted the power to adjudicate divorce matters (see Sloth-Nielsen ‘The Jurisdiction of the Regional Courts Amendment Act, 2008: Some implications for child law and divorce jurisdiction’ 36 (2011) Journal for Juridical Science 1 at 8). This was part of the government’s initiative to transform the justice civil system by ensuring that justice in the form of access to courts is realised (s 34 of the Constitution). This initiative was mainly aimed at ensuring that the jurisdiction of magistrate’s courts is widened in order for these courts to be forums of dispute resolution, which are easily accessible to the people. In order to minimise litigation within the magistrate’s courts, government launched the Court-Annexed Mediation Rules, which are meant to encourage disputants to voluntarily submit themselves to mediation of disputes prior to commencement of litigation in the magistrate’s courts (r 2 (1)(a)). In terms of these rules, ‘mediation’ is defined as ‘the process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute’ (www.justice.gov.za, accessed 21-2-2017).
Mediation has traditionally been viewed as a viable option to the litigation of family disputes generally and divorce matters in particular in South Africa (SA) (M De Jong M ‘A pragmatic look at mediation as an alternative to divorce litigation’ 2010 TSAR 515). The case of MB v NB 2010 (3) SA 220 (GSJ) highlighted the importance of mediation in divorce proceedings in SA. While courts, legal practitioners and academics in SA are advocating for reliance on mediation in divorce proceedings, established jurisdictions such as United States (US), Canada and Australia have for decades considered the use of another alternative dispute resolution in divorce matters known as collaborative law. This article discusses the possibility of adoption of collaborative law in SA, and assesses whether this form of alternative dispute resolution is likely to be practiced successfully in SA.
Duhaime’s Law Dictionary defines ‘collaborative law’ as ‘[a] family law dispute resolution encouragement process set in writing which includes a promise to negotiate in good faith, to engage in the exchange of private and confidential information on a without prejudice basis, and a motivational commitment that the participating lawyers or law firms would withdraw if the negotiations fail’ (www.duhaime.org, accessed 21-2-2017).
In the US, the Uniform Collaborative Law Rules and Uniform Collaborative Law Act (http://leg.mt.gov, accessed 21-2-2017) were adopted in 2009 in order to ensure that there is uniformity in the manner in which collaborative law is practiced in that country. Rule 2 of these rules endorses the disqualification agreement which is an integral part of collaborative law, which distinguishes it from other forms of alternative dispute resolution methods, including, mediation (Pauline H Tesler Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association 2008) at 5). In terms of this agreement, parties sign an agreement that while they are each represented by their respective legal representatives, such legal representatives’ mandate is limited to only assisting them to negotiate in good faith for them to reach an agreement. In that, should they fail to reach an agreement and wish to take the matter to court, then their respective legal representatives will be disqualified from representing them in court (Nancy Cameron ‘Collaborative Practice in the Canadian Landscape’ 49 (2011) 2 Family Court Review 221 at 226). The collaborative law agreement to participate in the collaborative process is often referred to as the four-way agreement, which covers both parties and their legal representatives. In terms of this agreement, parties agree to, among others, the –
According to Tesler (op cit at XX): ‘When the sole agenda is settlement, and when the sole measure of lawyer success is achieving an agreement both clients can accept, and when the lawyers have been instructed by their clients not to include court-based resolution as part of the range of possible solutions for a given problem, a quantum leap in problem solving frequently occurs: Both lawyers and clients marshal their creative intellects toward finding solutions for each problem that will work well for both parties’. In other words, legal practitioners focus not only on what is best for their clients alone, but consider the interests of the other parties and thus advise their clients to be considerate in their demands. This is particularly important in divorce matters, because at times such matters go on for years – not because they cannot be settled – but because of external issues such as parties’ anger, desire to punish each other and general unreasonableness in an attempt to make the other’s life miserable. As such, collaborative law enables the legal representatives to create an environment for parties to see the bigger picture and in the process attempt to minimise the costs relating to their dispute by being reasonable in their demands. This is particularly so when parties have children, because they will continue to play a role in each other’s lives. Thus, this process aims to preserve the relationship of the parties.
The Law Society of Australia has observed that in relation to family law, collaborative practice works to –
Collaborative law has been criticised that it raises ethical concerns. It has been argued that the disqualification agreement, might lead to vulnerable clients being coerced into unfavourable settlements by the threat of being ‘abandoned’ by their legal representatives if they do not agree to settle in accordance with such legal representatives’ guidance (Julian E Thomas ‘The ethical implications of collaborative law’ (2013) paper 2 at 5, www.civiljustice.info, accessed 21-2-2017). While this criticism is welcomed, nonetheless, it would not necessarily be easy for legal representatives to pressure their clients during the collaborative process because clients are given wide autonomy to determine the resolution of their disputes. Clients are part of the negotiations and are allowed to raise their concerns freely, and can decide for themselves whether the proposed solution meets their needs and interests or not. It has also been argued that an agreement requiring legal representatives to withdraw is unreasonable in the sense that, when the parties have to find new legal representatives that may lead to extremely asymmetrical costs on the two parties – one party can do it cheaply, the other only at great expenses (Scott R Peppet ‘Lawyers’ bargaining ethics, contract, and collaboration: The end of the legal profession and the beginning of professional pluralism’ 90 (2005) Iowa Law Review 475). I am of the view that this can actually be seen as an incentive for parties to attempt to a reach mutually beneficial solution, because they both would incur costs when the process collapses. In an attempt to discourage litigation in divorce matters and further fracture parties’ relationships, it is important that divorce lawyers craft innovative ways which will assist their clients to divorce amicably. Such a culture can be addressed through a collaborative process which can lead to settlements being reached sooner rather than later at great expenses. I have argued elsewhere that:
‘Collaborative law enables legal representatives not to think about themselves by pushing for an outcome which will lead to their clients emerging as victorious and them being viewed as better legal representatives. This winning mentality is part of the South African divorce litigation system which becomes more evident when legal representatives attempt to reach a settlement in what is referred to as round table conferences in South Africa’ (Clement Marumoagae ‘Does collaborative divorce have a place in South African divorce law?’ 49 (2016) 1 De Jure 41 at 54).
I am convinced that collaborative law as an alternative – not only to litigation but to also other available dispute resolution mechanisms creates – a suitable environment for the resolution of matrimonial disputes generally. Indeed, when two lawyers are committed to social justice and the wellbeing of their clients, they would provide legal advice that is more building rather than one that is destructive to the parties’ relationships. This can be achieved by working together to create an environment, which enables divorcing spouses to see the bigger picture by accommodating each other’s needs. Currently, it is possible for divorces to run for years only to end by parties eventually signing a settlement agreement.
While mediation has been seen as a preferred alternative dispute resolution method, it is hoped that divorce lawyers would consider adopting collaborative law when dealing with their divorce cases. Currently, in divorce matters legal representatives convene round table conferences in order to negotiate, but most importantly drive their respective client’s positions. Round table conferences can be ideal platforms to develop collaborative practice in SA. This will require practitioners to change their attitudes and not be litigation orientated. Once divorce instructions are received, it might be ideal to inquire from the client his or her views on the resolution of the divorce on a collaborative way wherein the needs and interests of both parties will be duly considered in order to reach an amicable solution.
Clement Marumoagae LLB LLM (Wits) LLM (NWU) Diploma in Insolvency (UP) is an attorney at Marumoagae Attorneys in Itsoseng.
This article was first published in De Rebus in 2017 (April) DR 22.