Matrimonial Disputes: The Applicability of Divorce Mediation as an Alternative.

Author: O. M. Atoyebi S.A.N Contributor: Toheeb Adeagbo

June 30, 2022
12:30 pm

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The legal system, in almost all facets of legal practice worldwide, is slowly succumbing to the constant beckons of the age-long piece of advice, and now-famous words of the erstwhile President of the United States of America –Abraham Lincoln. In his exact words, alternative dispute resolution is encouraged as he stated in the following words:

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”[1]

The import of the above is to the imperative effect that litigation should be eschewed in necessary circumstances so as to avoid waste of time, waste of money and for the maintenance of peace.

Various alternatives have surfaced as to what conflicting parties can opt for in resolving their disputes. Matrimonial disputes are not bereft of the existence of these alternatives some of which are Collaborative Divorce, Divorce Mediation and Divorce Arbitration.

The focus of this paper is to discuss the applicability of Divorce Mediation as an alternative to the usual litigation in matrimonial disputes.

MEDIATION & DIVORCE MEDIATION EXPLAINED

Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. It is a “party-centered” process in that it is focused primarily on the needs, rights and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that he manages the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms (reality-testing), while refraining from providing prescriptive advice to the parties.

Divorce Mediation is a non-adversarial, facilitative and cooperative decision-making process, where a qualified and impartial third party help couples resolve disputes in their marriage, especially those relating to divorce or separation. Once the parties, with the help of their mediator, identify the issues, they then try to resolve those disputes between themselves. The mediator does not make decisions for them but attempts to get them to make decisions on their own.

Divorce mediation is a voluntary settlement process used frequently and successfully by married couples who want to divorce, and by domestic partners who want to separate. Divorce mediation gives couples the option to plan their futures rationally, and in an atmosphere of cooperation and mutual respect.[2] To a large and reasonable extent, divorce mediation places the future of the parties in their hands, rather than leaving it up to a Judge to decide what happens to them, the children and the assets. No one is as familiar with the situation of the conflicting parties as the parties themselves.[3]

Divorce mediation, as an approach to getting a non-adversarial divorce, has experienced growth in some jurisdictions such as the USA, Canada, UK, Australia and Hong Kong. As a result of its growth, various national mediation groups have been established in some of these jurisdictions. For instance, in Hong Kong, Mediation Group was set up in January 1995 under the auspices of the Hong Kong International Arbitration Centre (HKIAC), which was established to assist people resolve disputes by arbitration and mediation. A subsidiary group of Mediation Group, Family Mediation Interest Group, was soon established with the goal of furthering family mediation in Hong Kong.[4]

Also, the Hong Kong Legal Aid Ordinance has been amended to include mediation. Section 6.602 of Texas Family Code 2005, equally allows divorce mediation in Texas.[5] In Nigeria however, Divorce Mediation has not been fully embraced.[6] What readily looks like divorce mediation in Nigeria is reconciliation as provided under Section 11 of the Matrimonial Causes Act.[7] The Section provides:

“(1) It shall be the duty of the court in which a matrimonial cause has been instituted to give consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage (unless the proceedings are of such a nature that it would not be appropriate to do so), and if at any time it appears to the judge constituting the court, either from the nature of the case, the evidence in the proceedings or the attitude of those parties, or of either of them, or of counsel, that there is a reasonable possibility of such a reconciliation, the judge may do all or any of the following, that is to say, he may:

adjourn the proceedings to afford those parties an opportunity of becoming reconciled or to enable anything to be done in accordance with either of the next two succeeding paragraphs;
with the consent of those parties, interview them in chambers, with or without counsel, as the judge thinks proper, with a view to effecting a reconciliation;
nominate a person with experience or training in marriage conciliation, or in special circumstances, some other suitable person, to endeavour with the consent of the parties to effect a reconciliation.”[8]

This alternative seeks to bring parties together and forget their disputes. The Court should seek to reconcile parties rather than help them to dissolve their marriage. If carefully examined, the issues which most of the time, make parties call for dissolution may not have caused an irretrievable breakdown of the marriage. But as good as this alternative is, the context/atmosphere under which it may be applied seems too hostile to achieve its aim. This is because parties would have engaged in litigation adversary before the Judge could order reconciliation having been structured to take place after a petition is filed. It is not well-suited for reconciliation as parties would not shift from entrenched positions. More so, reconciliation between the parties is only permissive and not mandatory.

Reconciliation is statutorily recognized and it is being regarded as an ADR process.[9] It could be said to be very close to divorce mediation which is presently not in operation in the country. But the process of reconciling parties takes place under what has been referred to as ‘shadow of the law’[10], and this is because the Court environment is hostile and not conducive for meaningful reconciliation.

It is recommended that reconciliation be made as an alternative to litigation in its real sense, and not be ordered where litigation has already begun/in the middle of litigation, where parties would have become estranged from each other. This recommendation is to help in holding marriages that may have broken down irretrievably together again in a very easy manner.[11] It is envisaged that when reconciliation is treated as such in Nigeria, it will attract parties with disputes in their marriages which may be on the verge of divorce no matter how irretrievably their marriages may have broken down. This is because no one wishes for the winding up of his/her marriage.

Parties should have the option of either going to Court to litigate their dispute, or opting for any of the ADR methods, and not that the ADR methods be introduced or agreed upon by parties after litigation might have started.[12] This will ensure an easy and effective settlement of disputes since parties would not have been engaged in court-room adversary. This approach will equally solve the challenge of negative response of parties. If reconciliation is statutorily recognized in Nigeria as ADR method for resolving marriage disputes, then other methods should equally be introduced, at least, for trial. If they are introduced, the above approach (making them independent) should be employed for their application.

[1] Fiske: An Enthralling Introduction to Divorce Mediation, 25 B. B. J. page 15 (1981).

[2]<https://www.nysmediate.org/what-is-divorce-mediation-#:~:text=Divorce%20mediation%20is%20a%20voluntary,of%20cooperation%20and%20mutual%20respect > Accessed on 09/05/2022.

[3] <https://www.mediate.com/articles/jamesb1.cfm > Accessed 9/05/2022

[4] Hooworth Robyn, ‘Family Mediation’ [April 1996], The Official Journal of the Law Society of Hong Kong, April 1996

[5] Texas Family Code 2005, Chapter 6 Subchapter G § 6.602.

[6] Aderibigbe M., ‘Family Life-Line Through Wide-Base Support’ <https://www.mediate.com/articles/aderibigbeM2.cfm> accessed 17 May, 2022.

[7] Matrimonial Causes Act 1970.

[8] Ibid. Section 11 (1)

[9] Training Manual on Alternative Dispute Resolution and Restorative Justice for a workshop organized by the

National Judicial Institute, Abuja and sponsored by European Commission, October 2007.

[10] Mnookin R. & Komhauser C., Bargaining in the Shadow of Law: A Case of Divorce (1978) Yale Law Journal 88.

[11] Oyedele Opeyemi: Legal Application of Alternative Dispute Resolution (ADR) to Marriage Disputes in Nigeria, (unpublished) 2019, page 83.

[12] Ibid. page 84

Matrimonial Disputes: The Applicability of Divorce Mediation as an Alternative.

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