RULE 182 OF THE HIGH COURT RULES, A CASE FOR LIMITED MEDIATION IN MATRIMONIAL CASES
Rule 182 (1) of the High Court Rules provides that;
“Subject to this rule, when the pleadings in any action are closed,a party who wishes to have the action brought to trial shall request the other parties to the action to attend a pre-trial conference at a mutually convenient time and place with the object of reaching agreement on or settling the matters referred to in subrule (2)”.
My observation over the 28 years that I have practised law is that lawyers hardly use the aforesaid rule. Even where the Registrar issues a memo directing the parties to meet in compliance with the aforesaid rule, lawyers and their clients tend to adopt a very casual approach towards the Registrar’s directive. In some cases the directive is simply ignored whilst in other cases, the meeting takes place in the office of a Judge’s Clerk just before the parties appear before a Judge in Chambers for the pre-trial conference. Judges on the other hand expect the parties to meet and seriously attempt settlement before the pre-trial conference. Unfortunately, no serious attempts at settlement are made by the parties. At times, due to time constraints and other factors, Judges are unable to devote as much time as they should and do as much as they can, to get parties to reach a settlement. At the end of the day, cases that should in fact be settled at pre-trial conference stage end up being referred to trial.
It is common cause that in some of the divorce cases given the phenomenon of transnational marriages and the number of Zimbabweans in the diaspora, the parties will be based in such far away countries as England, Canada, Australia or the United State of America. These parties are expected to fly to Zimbabwe in order to attend a pre-trial conference which conference may not yield much. The current procedure does not provide for the holding of pre-trial conference via skype. This means that until such time as there is a new procedure, litigants in the diaspora intending to divorce in Zimbabwe must, if their cases are contested, fly to Zimbabwe to attend pre-trial conferences. Can anything be done to make life easier for these and other litigants? Can anything be done to lessen the workload of our hard working Judges? Can anything be done to increase the number of matrimonial cases that are settled at pre-trial conference stage? I believe there is room for improvement.
The United Kingdom Government defines family mediation as;
“a process in which an impartial third person, the mediator, assists couples considering separation or divorce to meet together to deal with the arrangements which need to be made for the future”1
Countries such as England and Scotland have not only successfully introduced family mediation but have gone on to introduce family arbitration. In Africa, South Africa and Ghana are good examples. South Africa is currently considering amending the Arbitration Act to include Family Arbitration. In Ghana, the following remarks by Jacqueline Nolan-Haley are salutary2.
“Ghana’s formal court system, while functioning, was plagued with some of the same problems that affect many court systems; inefficiency, high costs, case backlog, inadequate resources and corruption – All these factors acted acted as an impetus for ADR to become an access to justice vehicle in Ghana”.
The above led to the passage of the Alternative Dispute Resolution Act 798 in 2010. The Commercial Division of the High Court in Ghana has since issued rules making mediation a mandatory pre-trial procedure. Acting Judge Brassey in Brownlee vs Brownlee 2008/25274 (unreported) in the South Gauteng High Court highlighted the benefits and success witnessed in South Africa as well as the support for family mediation in South Africa by remarking as follows;
“I am given to understand that in England the all but obligatory recourse to mediation has profoundly improved the process of dispute resolution. Parties resolve their problems so much more cheaply as a result and the burden on the court rolls has been considerably lightened. Informed estimates put the success rate of mediation at between eighty and ninety percent. But (….) I can say with confidence that the parties would have been well served if they had submitted this dispute to mediation and then fought out, if fight they must, the one or two issues of fundamental concern to them”.
In Zambia there is court annexed mediation Order 31 Rule 4 of their High Court Rules provides as follows;
“Except for cases involving issues or the liberty of an individual or an injunction or where the trial Judge considers the case to be unsuitable for referral, every action may, upon being set down for trial, be referred by the trial Judge for mediation and where the mediation fails, the trial Judge shall summon the parties to fix a hearing date…”.
In an article entitled, Mediation : The Future of Dispute Resolution in Contemporary Scotland, T McFarlane had this to say about Family Mediation;
“Not only does family mediation relieve the parties of the often extreme financial burden but it can also relieve them of the heavy emotional burden associated with litigation…Mediation decreases the likelihood of harmful outcomes such as the escalation of conflict, whereby the feelings of resentment, hostility and bitterness are accentuated, leading to increased conflict as opposed to a smoother, quicker resolution of the issues”.
I submit not only on the basis of my many years’ experience as a lawyer but also a marriage Counsellor with both the Harare Christian Counselling Centre and The Marriage Centre that it is time that we introduce family mediation at least at the pre-trial conference stage. What this will entail is diverting at pre-trial conference stage, all matrimonial cases to mediation by experienced and trained mediators who have a family law background.
How in practical terms can this be achieved? Well, here is my proposal;
- That when a matrimonial case gets to the pre-trial conference stage, the Registrar addresses a letter to the parties referring them to family mediation conducted by the Mediation Centre.
- That a Mediation Centre be set up (I can do this).
- That Law Society of Zimbabwe approved training of family mediators be conducted for interested lawyers (I can facilitate this).
- That only experienced lawyers with a family law background who will have been trained as family mediators be on the panel of family mediators.
- That the mediators be regulated.
- The mediation procedure should allow for such techniques as skype so that litigants especially in the diaspora do not have to be physically present during the mediation.
- That where litigants cannot afford the services of a mediator, the mediation be done on a pro bono
- That the mediation covers such aspects as divorce, property division, custody, access and maintenance.
- The mediator should at the end of the mediation issue a certificate signed by the mediator and the parties, setting out what the parties will have agreed on as well as any issues for trial.
- The aforesaid certificate will be filed with the Registrar who will then forward the record of proceedings to a Judge whose task will be to check the Mediator’s Certificate to ensure that it is in order. Once the Judge is satisfied that the Certificate is in order they will then refer the matter to trial if there are triable issues. Should there be issues requiring clarification, the Judge can seek such clarification from the parties.
- The mediation proceedings will be private and confidential.
- No mediator will be compelled to give evidence vis-à-vis what transpired during the mediation.
The above may require the issuance of a Practice Directive or an amendment to the rules. Such fora as the colloquium and the Law Society Summer School can be used to promote this proposal.
The implementation of the proposal supra is likely to result in the following benefits;
- The reduction of our Judges workload.
- Judges will be able to take on other cases.
- Litigants will not have to fly from different parts of the world in order to attend pre-trial conferences.
- Mediation will be done by experienced lawyers with a family law background.
- Chances of achieving out of court settlements will be increased.
- Triable issues are likely to be reduced.
- Successful mediation reduces legal costs.
- Parties will be relieved of the heavy emotional burden associated with litigation.
- Successful mediation reduces the harmful effects of litigation such as resentment, hostility and bitterness.
- Lord Chancellor’s Department, Looking To The Future : Mediation & The Grounds For Divorce (White Paper).
- Mediation & Access to Justice In Africa : Perspectives from Ghana.
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