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08 Jun 2011

High Court mediation order with costs, non-compliance

My ex tried to have an outdated parenting plan made an order of the court by getting FA to endorse it without disclosing the declared dispute I had with her.

High Court dismissed the plan being made an order, and instead ordered us to go for mediation, as I requested, and slapped ex with a cost order as well for being obstructive and uncooperative.

What are the consequences if ex now fails to go for mediation as ordered by High Court?

Answer 621 views
Family law expert
family law expert

01 Jan 0001

A recent court case emphasized the importance of mediation in family law matters. The judgement handed down by Acting Judge Brassey in the South Gauteng High Court (Brownlee v Brownlee: 2008/25274) emphasized the duty of parties to attempt to mediate a dispute and the obligation of the respective attorneys to encourage their clients to mediate the resolution of their dispute prior to embarking on litigation and facing the delays and expense of running a trial. The judgment emphasized and extolled the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to attempt mediation at an early stage. The judge expressed his disapproval of the parties’ conduct by making 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.

Your ex will get another cost order against her and run the risk of the court implementing a plan against her wishes.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
A:1st Floor, 56 Shortmarket Street, Cape Town, 8000
O: +27 (0) 21 422 1323
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