Most divorces in South Africa fall into one of two paths: mediation, where both spouses work with a neutral mediator to reach agreement, or contested court proceedings, where each party is represented by their own attorney and the court decides the outcome. Choosing between them is one of the first practical decisions a separating couple makes, and the wrong choice costs time and money. It can also damage the relationship that needs to remain functional after the marriage ends.
At Schoeman Borman, mediation is our first approach in most divorce matters. Litigation is the route we take when mediation is not appropriate or has not worked. This article compares the two paths on cost and time, and explains when each one is the right choice.
Divorce Mediation: How It Works
Divorce mediation is a structured negotiation between both spouses, facilitated by a neutral mediator. The mediator does not represent either party. Their role is to help both spouses reach agreement on the issues that need to be resolved. These typically include the division of assets, the question of maintenance and any parenting arrangements where children are involved.
Mediation is voluntary in most cases, but Rule 41A of the Uniform Rules of Court requires parties in High Court matters to actively consider mediation before litigating. When a divorce action is initiated, both parties must serve a notice indicating whether they agree to mediation and, if not, why not. This means mediation is not just an alternative to court. It is a step the legal system expects parties to take seriously.
A successful mediation produces a written settlement agreement. To be enforceable, that agreement needs to be incorporated into a divorce decree by the court. An attorney drafts or reviews the agreement, presents it to the court along with the divorce papers, and the court grants a decree that gives the agreement the same force as any other court order.
Contested Divorce: When Court Proceedings Are Necessary
A contested divorce is one where the spouses cannot agree on one or more substantive issues, and the matter proceeds through the courts. Each spouse is represented by their own attorney. Pleadings are exchanged, evidence is gathered through the discovery process, and if no settlement is reached the matter is decided at trial.
Contested proceedings are the right route when one spouse refuses to engage. They are also necessary where there are urgent issues such as protection from harm or the dissipation of marital assets, or where one party is hiding information that needs to be compelled through court orders. Where the legal issues are too complex for mediation alone, such as disputes over business interests or international elements that affect jurisdiction, contested proceedings are also the appropriate route.
Most contested divorces still settle before trial, often after an initial period of negotiation between the legal teams. Reaching that settlement requires legal representation throughout the process.
Cost Comparison
Mediation is significantly cheaper than contested litigation. A mediated divorce involves the mediator’s fees and the cost of finalising the settlement agreement and divorce decree through the court. The total is usually a fraction of what a contested divorce costs.
Contested litigation costs scale with the length of the dispute. Each step generates legal fees: the pleadings, the discovery process, expert reports, court appearances and the trial itself. A contested divorce that runs to trial can cost many times what a mediated divorce costs. The longer the matter takes, the more those costs accumulate.
Cost is not the only consideration, but it is a real one. Couples who can resolve their divorce through mediation usually keep more of the marital estate intact for themselves and their children, rather than spending it on legal fees.
How Long Each Process Takes
Mediation typically takes a few weeks to a few months, depending on the complexity of the issues and how willing both parties are to compromise. Once an agreement is reached, the unopposed divorce can usually be finalised within a few weeks of the application being filed at court.
Contested divorces take considerably longer. From the issuing of summons to a trial date, the process commonly takes a year or more, sometimes substantially longer where the matter is particularly contested or where court rolls are full. During this time, both parties are unable to fully move on with their lives, which compounds the emotional and financial cost.
Time matters most where children are involved. Prolonged litigation creates ongoing uncertainty for children about where they will live and how they will see each parent, and it tends to entrench conflict between the parents in ways that affect co-parenting long after the divorce is finalised.
When Mediation Works Well
Mediation works well when both spouses are willing to negotiate in good faith and there is no significant power imbalance between them. It is faster and cheaper than litigation, and it gives both parties more control over the outcome than handing the decision to a court.
Mediation is particularly suited to couples who want to maintain a working relationship after the divorce, which matters most where children are involved. Co-parents who design their own arrangements for care and contact tend to have less conflict afterwards than those who have a parenting plan imposed by a court. The agreements are also more durable, because both parties had a hand in designing them.
Mediation also gives both parties the opportunity to address practical considerations that a court process is not well suited to handle. Things like how birthdays and holidays will be split, or how school decisions will be made, can be agreed in detail, rather than left to a generic court order that does not anticipate the realities of the family’s life.
When Mediation Is Not Appropriate
Mediation is not the right route in every divorce. It assumes both parties can negotiate as equals, which is not always the case.
Mediation is generally not recommended where there has been domestic abuse, because the imbalance of power makes genuine negotiation impossible. It is also unsuitable where one spouse is hiding assets or being dishonest about finances. A mediator cannot compel disclosure the way a court can, and an agreement reached without full information is unlikely to be fair.
Where one party is unwilling to engage, mediation cannot be forced. If your spouse refuses to attend sessions or is using the process to delay the divorce rather than resolve it, contested proceedings are the only way to take the matter forward.
There are also situations where the issues are too complex for mediation alone. Disputes over business interests, complex trust structures and international jurisdictional elements all benefit from legal representation from the outset.
Common Mistakes in Both Paths
The biggest mistake people make during divorce, in either path, is letting emotion drive decisions that have lasting financial and legal consequences. Agreements reached in anger or guilt often cannot be undone.
Other common mistakes include hiding assets, using children as messengers between parents, posting about the divorce on social media, signing documents without legal advice and assuming verbal agreements will be honoured. A good attorney or mediator helps you avoid these mistakes by keeping the process structured and the communication formal.
If mediation is the route you choose, the same principles apply during the sessions. Stay focused on the issues being discussed and avoid threats or personal attacks. Do not introduce new demands at the last minute. Mediators are trained to manage difficult conversations, but cooperation from both parties makes the process work.
How Schoeman Borman Approaches Both Paths
Our family law attorneys take a mediation-first approach in most divorce matters. Where both parties are willing to engage and the circumstances are appropriate, mediation produces better outcomes for everyone involved at a fraction of the cost and time of litigation. We will advise you honestly on whether your situation is suited to mediation, and if it is, we work to make the process as efficient as possible.
Where mediation is not appropriate, or where it has been attempted and failed, we represent you through contested proceedings. Our experience across both paths means we can move between them as the circumstances of your matter require, rather than committing to one approach from the outset.
Where children are involved, we also assist with parenting plans and care arrangements, and we handle related maintenance matters.
We have branches in Pretoria and Nelspruit and assist clients across Gauteng and Mpumalanga. No matter where you are in the process, we handle every matter with the same care and attention.
Contact us to book a consultation and discuss your situation.