MB v NB 2010(3) 220 SGHC  (Judgement)

The divorce matter of MB v NB came before the South Gauteng High Court in August 2009. The facts of the case was essentially that after a ten year period of marriage, the relationship between the parties had deteriorated to such extent that the Plaintiff (the wife) instituted divorce proceedings against her husband (the Defendant). The issue of care of the minor child born of the marriage was not in dispute but what was in dispute was

• the issue of the defendant’s alleged obligation to provide maintenance for private school education for a step child whom the defendant had intended to adopt but had never done ;
  
• the issue of maintenance for a spouse ;
• the extent of the plaintiff’s accrual calculation

THE MEDIATION ASPECTS OF MB V NB JUDGEMENT

In handing down Judgement, Judge Brassey stated that the process by which the case had been resolved tragic not so much because of the time taken to resolve the issues in dispute but rather because of the astronomical legal costs which the parties would have to bear for litigation of their dispute. The Court indicated that the cumulative costs of the matter was in the region of R500 000-00 to R750 000-00 and that this money could have been put to better use by the parties (for example, to defray the costs of the private education for the children, one of the issues in dispute)

Judge Brassey noted that one of the issues which attorneys would have had to consider at a Rule 37 Pre-Trial Conference was whether the matter should be referred to mediation. He pointed out that at the Pre-Trial conference of this matter, the attorneys had answered this issue in the negative.  The Court pointed out that the Trial Judge to whom the matter had originally been allocated had attempted to perform this role himself during the first two days of the hearing of this matter and arising herefrom he had expressed certain views on how he felt the matter should be settled which had resulted in an application for his recusal by the Plaintiff’s representatives. Judge Brassey noted that the original Judge granted the application for recusal in order to avoid any subjective apprehensions by the plaintiff which could potentially bedevil  effective resolution of the matter. Judge Brassey was however of the opinion that the attorneys had erred in not sending the matter off to mediation, noting

When the plaintiff was busy testifying, I asked her whether the resolution of the case through mediation had been mooted by her legal advisers. She said it had not, but she went on to explain that she thought mediation would have served no purpose. Though this was her response to a question put by me, it is ultimately a matter on which, not being an expert, she can entertain no informed belief. Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by the one of several hundred people in this country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in the litigation and an appreciation of the costs and practical consequences of continued litigation, particularly, if the case is a loser.

He quoted from a 2007 English Judgement where the English judge had indicated that

In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. it is not a sign of weakness to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation. The skills are now well-developed. The results are astonishingly good. Try it more often.

Of particular relevance to family mediators is the statement from Judge Brassey that follows on this

If mediation is appropriate in commercial cases, how much more apposite is it in family disputes. They engage the gamut of emotions, from greed through pain to vengefulness; they generally involve the rights of children, majors as well as minors, who can only experience fear and bewilderment at the breakdown of the structures of love and support on which they, as family members, have come to depend; and the division of the estates of the parties, intertwined as they invariably are can be very complex and are frequently made the more so by the parties’ bloody-mindedness and duplicity.

The Judge concluded that the benefits which would have come from mediation of the matter would have been manifold. He felt that the parties would have had ample opportunity at mediation for discussion on the scope of the estates, the levels of income and the extent of their living costs. He opined that he had little doubt that the parties would have been successful at mediation. As a result hereof he noted his displeasure with the attorneys handling the matter and ordered that their fees be limited on the scale of party and party costs.