Almost 30 years ago by sheer chance, I attended a meeting and was introduced to Divorce Mediation. For me it was a eureka! moment. I was immediately sold on mediation and ever since have had the privilege of being involved in its propagation.
I relate the story because of an appeal I make to this audience. Somebody, or a group of you I hope, will take up the cudgels for the cause of divorce arbitration with the same enthusiasm and passion with which I took up the cause of mediation all that time ago. Help to bring it about. Without doubt, to my mind there is a desperate need to introduce arbitration into the ambit of divorce for a number of reasons which I shall adumbrate.
There is however a major obstruction. Section 2 of the Arbitration Act of 1965 prohibits a reference to arbitration of any matrimonial cause or matter arising from it. Although the courts in two judgments namely Ressel v Ressel 1976 (1) SA 289 (W) and Pitt v Pitt 1991 (3) SA 863 (D) interpreted Section 2 restrictively its reasoning and in fact the whole rational for Section 2 is out of keeping with modern jurisprudential thinking. Therefore it will require an Act of Parliament to rescind Section 2. In the nature of things this will not happen overnight.
So what are the factors favouring the introduction of Divorce Arbitration?
To begin with we are dealing with a challenge that eats into the very entrails of society. The traditional concept of marriage as a lifelong partnership has to a significant extent been jettisoned in our Western consumer society where there is a tendency to jettison anything and everything. Clearly divorce is not the equivalent of exchanging an old for a new car (although one sometimes wonders!). We are dealing with human beings, human emotions, children and indeed the very fabric of society. If divorce is an inevitable consequence of modern living one would hope that the process would be relatively cheap, resolved in the shortest possible time and in the process attempt to lessen the human agony it induces.
Understandable few Judges relish the thought of having to adjudicate an acrimonious divorce dispute. So much time is spent on turning minutiae into major issues that it requires the patience of a Job to sit through it all. And at what cost in money and emotional trauma for all those involved!
A far better procedure would be to have experienced specialists in family law presiding over divorce matters hopefully showing law with a human face, in contra-distinction to the formal rigidity and strict application of court procedures.
Therefore the first of several appeals, not necessarily in logical order, is for the creation of a body of specialists drawn not only from the legal profession but from elsewhere to preside over matrimonial disputes.
This is turn requires additional training specifically in the methodology of arbitration. It is a great mistake to view arbitration as litigation by another name. In addition, there needs to be created an overseeing body; perhaps, but not necessarily, with statutory recognition in order to ensure high standards both as to training and personnel.
Then there are the children. To many, the proposed scheme may cause major concern as it may be (erroneously) perceived that the court is excluded. This will not happen. The court will always retain its power as upper guardian. The functions of the Family Advocate in terms of the Mediation in Divorce Matters Act will remain in place. In order to give teeth to an arbitrator‘s award such award must be made an order of court in terms of Section 31 of the Arbitration Act. An arbitrator’s award in matrimonial matters should be made be subject to enforcement under Section 31 which by its very nature ensures that the court retains its supervisory function.
Rules must be devised that are simple. Simplicity does not come easy to lawyers. The Rules should outline basis procedures and leave any contingency not covered by these Rules to the discretion of the arbitrator who, it has already been suggested will be practitioners experienced in family law in addition to being specifically trained in the methodology of arbitration.
What of the right of appeal which does not exist in terms of the Arbitration Act?
That Act does however permit parties to agree on an appeal procedure to an arbitration appeal tribunal – but never to the court. It is the prerogative of the parties to decide whether or not to legislate for an appeal. An appeal can never be referred to the court. Only a review for procedural irregularities can be referred to court on grounds that are strictly demarcated.
Another important factor in favour of Matrimonial Arbitration is that unlike a judge an arbitrator upon appointment becomes involved in the procedure and from day one and can thereby greatly influence the pace at which the matter proceeds to trial. The result is that the procedure prior to the hearing can be substantially curtailed.
It is important to expand the ambit of pleadings more than what is normally provided in court procedures. Allegations made by the claimant must set out in some detail facts on which such allegations are based. Likewise denials by the defendant should be motivated by the facts on which such denials are based. The net effect is that matters are brought to trial far more speedily that is the position in the public courts.
Another consideration is that of confidentiality. Washing dirty linen in public is never edifying and limiting divorce proceedings to a hearing before an arbitrator ensures that what is confidential remains confidential and will not become public knowledge unless one or both spouses foolishly choose otherwise. Yet another great advantage of divorce arbitration is that the parties are free to agree on the choice of an arbitrator. One has been at pains to confine ones remarks to divorce arbitration without extending arbitration to family law as a whole. Primarily the reason is that there are numerous matters involving children that are and should continue to be dealt with by the Children’s Court.
A reasonable conclusion it is submitted, is that there are a few matters involving divorce that cannot be adjudicated upon by a competently trained arbitrator.
I am at an age when Old Father Time does not permit me to pursue the ideas I am propagating. However, I repeat, my appeal to somebody or a group of you in the audience is to take up the cudgels, drive the process and MAKE IT HAPPEN because I believe it is the RIGHT THING TO DO.
Charles H Cohen
Attorney – Johannesburg