7 reasons to avoid the trap of the free or bargain-basement will (or: How is a professionally drawn will like car insurance?)

 

Car insurance is a grudge purchase. So much so that a leading insurer is offering cash incentives to prospective clients, simply to get them on the phone long enough to sign them up. But if you are a careful, reasonably lucky driver, you may pay premiums year after year and never make a claim.

Along comes Penny Wise Pound Foolish Car Insurance (“Penny Wise”). They guarantee the lowest premiums or a free holiday to Disney World. Naturally, you are on the line to their call centre in minutes – and discover to your great joy that you can save R1000,00 a month in premiums! It’s a no brainer. Each month, you admire the teeny premium on your bank statement, and pity those poor suckers still insured by No Corners Cut Car Insurance (“No Corners”).

And then the worst happens. You are in your first-ever car wreck. Thankfully no one is hurt, but your beloved car is a write-off. To replace it would cost R100 000,00. Penny Wise informs you that your excess is R25 000,00, and that your car was insured for a total value of R50 000,00. It’s time to dust the cobwebs off your bicycle. Or prepare to take on a mountain of debt to replace your fully paid-up car.

So what does car insurance have to do with wills?

Legal fees, like insurance, are a grudge purchase. No one gets a bonus at work and enthuses: “It’s finally time to draft the co-habitation agreement of my dreams!” No one writes on their wedding invitation: “Instead of gifts, please consider a donation to our fund to finally sue that dodgy contractor that left us with an uneven, potholed driveway!”

Legal fees, like insurance, are an area where one can be “penny wise and pound foolish”. Especially in the area of wills. Why see a lawyer to prepare your will when your bank is offering to do it for free? Or you can pick up a fill-in-the-gaps version at PNA?

I visited a prominent bank’s website this morning. The website suggests that legal advice is a “nice to have” when drawing your will – only really necessary when you want to put “lots of special conditions” in your will. The website concedes that a will drafted by a lawyer is unlikely to be open to interpretation and so end up in legal disputes. That’s a pretty big advantage, I would say. If you want to put in “lots of special conditions”, the website concedes that professional advice would be worthwhile, and hyperlinks to a terrifyingly pared-down website that promises you a downloadable will for R350,00 in six easy steps (the first of which is “sign up” and the last of which is “print” – so actually four steps).

As an attorney with 16 years’ experience, I charge R1500,00 for a will. On the face of it, a bank customer who uses the web-based service is saving R1150,00. However, a client who sees me for their will gets a lot more than 4 answers plugged into a template:

  1. There are a wealth of different options available to testators to achieve exactly what they want with their estate. The best option in each case depends on the testator, the size of their estate, the nature of their assets, and even the personalities of their heirs. Is your youngest son terrible with money and in need of a trustee to look after his financial interests? Is your eldest daughter a home owner who would benefit more from a cash bequest than from inheriting a third of your house? Will it mean a lot to Aunt Mildred that she gets Granny’s emerald ring even though you are leaving the rest of your jewellery to your cousins? Come drink a cup of coffee with me and tell me about your family. There is no algorithm for that.
  2. Lawyers are trained to ask “what if” – and to confront head-on the worst case scenarios that most of us like to avoid thinking about. This is where things can go badly wrong. When I consult with a client for a will, I try to look around all the corners, and provide for every eventuality. You cannot assume that life will unfold as you expect it to, and there is tremendous benefit to being led to apply your mind to the unexpected, and covering all the bases.
  3. Once we have selected the options that make the best sense for you and your heirs, I will ensure that your wishes are put to paper in unambiguous terms. Your executor will know exactly what you meant. Your heirs will understand what they are getting. The aim is to enable an easy process to wind up your estate, and not leave confusion and conflict in the wake of your passing.
  4. You don’t have to use your own paper to print my wills. Seriously, I will print it for you (not on R1000 paper, but still.) I will supply a sturdy cover to store the will in. I will help you sign the will in accordance with all legal formalities. You do NOT want to sign a will incorrectly and have it rejected by the Master when your heirs try to wind up your estate. If that happens, your heirs must apply to the High Court to have your will accepted, and your initial saving of R1150,00 from Penny Wise Wills Ltd will fade into insignificance when those fees start rolling in.
  5. Once your will has been signed, our relationship continues. I will register your will online so that it can be easily located when needed. I will store the original will for you, should you so choose. I will make contact with you each year to ask: how has your life changed since we met, and does your will need to change to keep up with it?
  6. In my view, banks do not offer free wills to benefit their customers. They offer free wills to snag lucrative executors’ fees when their customers pass away. Should your estate be deemed small potatoes, the bank will drop it like a hot potato and your heirs will need to get the Master to appoint another executor in their place. Should it be sufficiently large, a bank official who probably never met you will wind up the estate and charge the maximum allowable fee (3,5% of asset value) for doing so. I recommend to my clients that they appoint their major heir as the executor, unless there is good reason not to do so. The heir can then approach an attorney of their choice for assistance in winding up the estate. That may be me. It may be their own attorney. Some clients prefer to appoint me as their executor, as they trust me to treat their heirs with care. We have a relationship, and winding up a client’s estate is generally the last service I can offer them. My fees for winding up an estate are negotiable, and unlikely to be the maximum fee unless the estate is very small in value and the work still considerable.
  7. And the website offering a four-step will for R350,00? Whoever owns it has a great passive income business and may be getting quite rich. I hope they have had a professional draw up their will. Ha.

 

 

The 11 Things an Executor Must Do

The administration of a deceased estate is a cloaked and murky process. As laypeople, we may hand over the task to an attorney or bank, wait a long time, see a sizeable fee deducted for executor’s remuneration, and never quite understand what happened in the intervening period. What do executors actually do, and why do even small estates take months (or even years!) to wind up? In this blog, we cover the 11 step process an executor follows to wind up a deceased estate.

Step 1: Meeting the family

The nominated executor will start off by meeting with the deceased’s loved ones to commence the process of winding up the estate.

Step 2: Reporting the estate

At this early stage, she will take possession of the deceased’s original will (if any) and assist the loved ones in completing the necessary documents to report the estate to the Master of the High Court. There will be an initial assessment of the size of the estate to determine whether a full administration process is needed or whether a truncated procedure can be followed if the estate assets are valued at less than R250 000,00.

Step 3: Obtaining letters of executorship

She will send off the reporting documents to the Master, who will then issue Letters of Executorship in her favour, which empower her to handle the estate and liaise with debtors and creditors.

Step 4: Notice to creditors

She will place a notice in the Government Gazette and a local newspaper, advertising the estate and calling on all creditors to come forward and lodge their claims against the estate, within a 30 day period. The executor will receive and assess all claims received.

Step 5: Open estate cheque account

She will open a cheque account in the name of the estate as soon as there is cash in hand. All cash assets and monies due to the estate will be deposited into this estate.

Step 6: Valuations of assets and liabilities

She will determine what the assets in the estate are valued at, and the amount of the estate’s debts. Assets include immovable property, movable property, cash and investments, and claims in favour of the estate. Liabilities include debts and administration expenses.

Step 7: Draft liquidation and distribution account

This is the core of the administration process. Having gathered the necessary information, the executor will draw up a comprehensive account that sets out all assets and liabilities, their values, any cash surplus or shortfall, how the estate must be distributed in terms of the will or law of intestate succession, estate duty calculations, and handling of fiduciary assets. This account goes to the Master for scrutiny.

Step 8: Respond to Master’s queries

In response, the Master will send a query sheet giving details of documents and information required at different stages of the process.

Step 9: Inspection period

Once the Master’s initial queries have been responded to and he is satisfied with the account, the executor will place a notice in the Government Gazette and a local newspaper, advertising the account as lying for inspection for a period of 21 days. During this period, any interested person may inspect the account and lodge objections to it. Any objections are responded to by the Master.

Step 10: Distribution

Once the account has lain for inspection and any objections have been dealt with, the executor must distribute the estate assets by transferring immovable property, delivering movable property, and/or paying cash inheritances over to the heirs.

Step 11: Discharge of executor

The executor will be paid her remuneration and send the necessary proof to the Master to demonstrate that all assets have been distributed as required, as well as a full set of bank statements and unpaid cheques. She can then apply for a discharge as executor, supported by affidavit. At this stage, her duties have been completed.

The administration of a deceased estate is a process with many stages, all of which take time. A professional executor should keep you informed at all stages of where the process is, and what comes next.

For assistance in winding up a loved one’s estate in a timely, sensitive and cost-effective manner, contact us below or at camilla@roseattorneys.co.za

Divorce and the forgotten will

Divorce inevitably affects one’s estate. If you were married in community of property, your joint estate is divided up. If you were married with accrual, some money or property would have changed hands, or one of you would have waived a claim. Even if you were married out of community, some division exercise would have taken place in the common home to sort out what is yours and what was your spouse’s.

Yet the last thing on your mind when going through a divorce may be your will. It may have been signed years earlier – in happier times – and the chances are that your spouse would have been your primary heir.

The Wills Act acknowledges that it can take some time to get one’s affairs in order after a divorce. Section 2B provides that, if (1) you made a will before your divorce (or annulment) and (2) you die within three months of your divorce (or annulment), then your will will be implemented as if your former spouse died before you. An exception is made where it is clear from the will that the bequest is made regardless of divorce.

Three months after a divorce, however, any outdated will that benefits your former spouse becomes of full force once again. If you die three months and one day after your divorce, and your old will made your former spouse your heir, then they will still inherit.

It is thus important to think about the need to update one’s will whenever there is a major change in status such as a divorce. Births, deaths, marriages and divorces, and major changes in one’s estate, should all trigger a review of your will to ensure that it still reflects your wishes.

Contact us to draw or revise your last will and testament and/or living will: camilla@roseattorneys.co.za / 074 697 2048.

 

Public equality and private sexism?

Is a person making a will entitled to be sexist?

That question recently came before the Cape High Court, and the outcome may be surprising.

Well over a century ago, a wealthy couple executed a will. In it, they distributed their numerous farms and other properties between their four sons and two daughters, subject to a fideicommissum. A fideicommissum is a provision that an heir must transfer an inherited property to a specific other person on their own death. On each son or daughter’s death, shares in the properties would go to that son or daughter’s own sons, and thereafter those grandsons’ sons. If there were no sons, then brothers or nephews might inherit.

One of the couple’s children, Cornelius, inherited certain properties from his parents in terms of the fideicommissum. He died in 1957, leaving behind three sons and six daughters. The properties he had inherited were passed on to his three sons (the grandsons) in equal shares, to the exclusion of his six daughters.

When the first grandson died, he left no children, and his shares in the properties went to his brothers in terms of the will. When the second grandson died, his shares went to his sons (the great grandsons). The third grandson had five daughters and no sons. He and the great grandsons, his nephews, treated the properties on the basis that they would ultimately belong to the great grandsons in terms of the will. A year before his death, however, he was advised that the fideicommissum may be unconstitutional, and he made a will leaving his shares in the properties to his five daughters instead.

An executor was called upon to wind up his estate, and was faced with the third grandson’s will leaving his estate to his daughters on the one hand, and the original will which excluded his daughters from inheriting the properties on the other hand, along with a claim to the properties from the great grandsons.

The daughters and executor took the view that the terms of the fideicommissum were unfairly discriminatory on the basis of sex, and should be set aside as being against public policy and unconstitutional. They approached the court for direction, asking the court to remove the discrimination against female descendants from the original will, to enable the daughters to inherit their late father’s properties. The Master of the court accepted the third grandson’s will in favour of his daughters, and abided the decision of the court on the validity of the fideicommissum. The great grandsons opposed the application.

The court considered wills creating charitable and educational trusts which had discriminated against Jews, women and those not “of European descent”. These had been varied by the courts to remove the unfair discrimination. In at least one case, the discrimination on the basis of race had not been deemed unfair, and an application to vary terms had been refused.

The court drew a distinction between wills having a public character (providing for ongoing bursaries, for example) and those which were strictly private in nature. In the latter cases, the freedom of testation of the person making the will should be respected, the court reasoned, even if the wishes expressed were unreasonable. No potential heir enjoys the right to an inheritance, and the maker of a will is free to disinherit whomever they please.

In the present case, the parties were in agreement that there was unfair gender discrimination in the fideicommissum. The argument centred around the appropriate limits on freedom of testation – and whether the maker of a will was required to refrain from unfair discrimination.

The court considered which was the lesser of two evils – unfair discrimination against a small group of potential female heirs (as the discrimination against an earlier generation of potential female heirs, and their female heirs in turn, was past and irrevocable, and this substitution was the final one in terms of the will), or incursion upon a testator’s freedom to arrange their estate as they chose. The court decided that, even if the fideicommissum perpetrated unfair discrimination against the daughters, this was a reasonable and justifiable limitation upon their right to equality. The freedom of testation had primacy in the private sphere. The application to remove the discrimination from the will, accordingly failed, and the great grandsons inherited the properties in place of the daughters.

In sum, this judgment means that the maker of a will is indeed entitled to be sexist, as regards their family members – but in general not as regards public beneficiaries of charities or educational bursaries set up through their will.

One wonders whether the result would be the same if the maker of a will disinherited descendants of a specific race or religion instead of a specific gender.

 

 

Cape High Court upholds rights of trans people and their spouses

The Alteration of Sex Description and Sex Status Act was signed into law in 2004. It was a groundbreaking piece of legislation, intended to enable transgender and intersex people to correct their official birth certificates and identity books or cards, by updating the gender assigned to them at birth, to their accurate gender identity.

While the law represented progress, it has been subject to criticism – and not only from those who believe that gender is biologically determined, with exclusive reference to one’s genitals visible at birth.

Reliable local statistics are hard to find, but with estimates that about 1,7% of a population are likely to be intersex, and about 0,5% transgender, a full 2,2% of the South Africa population (or 1,2 million people) might benefit from the Act’s provisions. In the 10 years following the enactment of the law, however, only 95 people were able successfully to access its provisions. Something has clearly gone wrong.

The Department’s inconsistent and unfair implementation of the Act came before the Cape Town High Court late last year. A number of happily married, trans individuals had applied for correction of their gender on their official identity documents. The applicants had all been married in accordance with the Marriage Act, to spouses of the opposite sex. The correction of records would have the result that they were in same sex marriages going forward. The Department refused to assist two of the applicants unless they divorced their spouses – and a third was assisted but had their marriage deleted from the official records and their married name dispensed with, without their consent.

The cases came before court, with orders sought (1) compelling the Department to assist applicants in terms of the Act regardless of their marital status, and in the alternative (2) declaring the statutory framework constitutionally invalid to the extent that it disallowed the correction of the recorded gender of a married person.

The Court considered the statutory framework, and noted that the Marriage Act dealt primarily with the solemnisation of a marriage – that is, who was authorised to act as a marriage officer, and what formula should be followed to conclude a marriage. Nothing in the Act prohibited a spouse in a marriage from later altering their recorded gender. The Civil Unions Act provided a parallel system for the solemnisation of same sex marriages. Once solemnised, the distinction ended and there was only one institution of marriage (reached by different routes).

Thus, the Court found, an alteration of gender records was in no way irreconciliable with the continuation of a marriage solemnised under either law.

The Court thus ruled that the Department, in its treatment of the applicants, had infringed their constitutional rights and failed in its legal obligations. Marital status and whether a marriage was solemnised under the Marriage Act or Civil Unions Act, was entirely irrelevant. The Department was directed to process the alteration applications of the first two applicants, and restore in its records the marriage of the third applicant, within 30 days.

 

 

 

FWIW cncllg cntrct TTYL B4N

If you have a smartphone, you probably use Whatsapp daily. This handy little app has 1,3 billion monthly active users, but is often controversial – sending your data to Facebook for targeted adverts and friend suggestions, and encrypting communications to lock out cybercriminals but also government agencies investigating terror networks.

Our whatsapp conversations are increasingly being entered into evidence in court proceedings.

A Saudi man reported that he divorced his wife after the app showed that she had received and read his messages, but failed to respond to any of them. This process, known as “blue ticking” in reference to the little blue ticks that show that your message has been displayed on the recipient’s phone, also played a role in a Taiwanese woman’s divorce. She submitted evidence of her husband continually ignoring her messages, and this was accepted as evidence that the marriage had irreparably broken down.

An Italian divorce lawyer reported that evidence of whatsapp messages between spouses and their extra-marital partners was being used in around half of the divorce cases going to trial there.

Closer to home, the country scrutinised emotional whatsapp messages exchanged between murder convict Oscar Pistorius and his victim Reeva Steenkamp, provided as evidence of a tumultuous and emotionally abusive relationship.

Increasingly, even business negotiations may take place via whatsapp. But are these communications legally binding?

The Electronic Communications and Transactions Act of 2002 (ECTA) gives formal legal recognition to transactions concluded by email. The Act obliges courts interpreting its provisions to recognise and accommodate electronic communications in applying statute or common law.

Our law recognises a data message (such as an email or whatsapp message) as adequate in most cases where the law or an agreement requires something to be in writing. Notable exceptions where agreements cannot be concluded electronically include deeds of sale of immovable property, and last wills and testaments – even where an advanced electronic signature is used.

The law or an agreement may also require that a document be signed by a party. The question then arises as to whether one can sign a document via email or whatsapp. This question was recently considered by the Supreme Court of Appeal (SCA), in the case of Spring Forest Trading (SFT) versus Wilberry (W).

W owned car wash equipment, and contracted with SFT to operate car washes at several locations, using its equipment, for which SFT paid W rentals. SFT fell into arrears, and the parties entered into discussions to remedy the situation. A face-to-face meeting was held, after which SFT’s representative emailed W’s representative, recording in writing four proposals which W had offered it. The second proposal was recorded as “Cancel agreement and walk away.” SFT sought confirmation that, if this proposal was pursued, there would be no legal claims by either party.

W’s representative responded by email, confirming that, provided all rental arrears were paid, there would be no legal claims.

SFT then emailed W, advising that it accepted the second offer.

SFT returned the car wash equipment and paid the rental arrears. That might have been the end of the matter. It was not, however – SFT continued to run car washes from the same locations, now renting equipment from W’s competitor – probably not the outcome that W had foreseen.

W rushed to court on an urgent basis, claiming that its agreements with SFT had not been validly cancelled, and seeking an interdict to prevent SFT from operating car washes while it prosecuted a claim for damages. The High Court was sympathetic, and granted an interdict, agreeing that the agreements had not been validly cancelled. The judge deciding the matter found that the agreements – which required consensual cancellations to be reduced to writing and signed by both parties – did not allow for cancellation via an exchange of emails.

SFT appealed this judgment to the SCA. It relied upon ECTA, which states that, where parties to an electronic transaction require an electronic signature, but have not agreed upon the type of electronic signature, then the requirement is met if (1) a method is used which identifies the person and indicates their approval of the information communicated and (2) the method was as reliable as was appropriate for the purposes for which the information was communicated, having regard to all the circumstances. It argued that the consensual cancellation had been reduced to writing in the form of the exchange of emails, and had been signed by the parties when they ended each email by typing their full names.

W disagreed, arguing that (1) the emails were evidence of negotiations but could not constitute an actual agreement to cancel, (2) at best, the emails only referred to the rental agreements and not the master agreement between the parties, and (3) even if ECTA applied, then an advanced electronic signature was required, and this was absent.

The SCA found: (1) the emails clearly amounted to an agreement and not mere negotiations, as the parties reached consensus that they could walk away once arrears were settled and equipment returned, with no further legal consequences and (2) “walking away” could only mean that all agreements would be cancelled.

On (3), the court examined ECTA in more detail, finding that:

  • a data message could unquestionably satisfy the requirement that an agreement be in writing;
  • an advanced electronic signature was only required where imposed by law, and not in private agreements: it involved an elaborate and strict application process, for accredited products and services only. The parties did not deal in such products or services;
  • between private parties who required a signature, a standard electronic signature would suffice.

W argued that the recordal of a party’s full names at the end of an email did not meet the ECTA requirements for an ordinary electronic signature – there was no reliable method to identify the parties and indicate their approval of the information communicated.

The court disagreed, pointing out that courts have always taken a pragmatic approach to signatures, and required that a signature authenticates a signatory’s identity, without insisting on specific forms. In appropriate cases, a witness touching the pen while a magistrate made a mark on her behalf, had been accepted as a valid signature. The typed names identified the parties, were logically connected with the information that preceded them, and satisfied the ECTA requirements for an ordinary electronic signature.

The appeal was accordingly upheld, and the interdict against SFT set aside.

Had the parties not appended their names or another form of signature to their emails, however, the requirement that a consensual cancellation be signed by both parties would not have been met, and the purported cancellation would have been ineffective.

In summary, electronic communications via email, whatsapp and other means are increasingly relied upon in commerce. Parties engaging in electronic communications in business matters should be aware that these communications may feel casual but can be legally binding upon them. Where a party is negotiating by text or email but intends for any resultant agreement to be written up and signed on the printed page before it will be binding, this should be spelled out clearly – before an “in principle” agreement is reached. Failure to do so can mean that a party is bound by the terms set out in the text exchange, while other pertinent clauses the party may have wished to insist upon will be excluded.

While email and text are convenient, in cases such as the one above, the presence or absence of a signature can have far-reaching and costly implications. When emails and texts are intended to have legal consequences, a party would be wise to ensure that these communications still fulfill all legal requirements – such as a full signature where one is required. Had the parties’ representatives ended their emails with an unsigned greetings (“Best”) or an initial for shorthand (“C”), the outcome of the case may have been quite different – and a business potentially ruined in the process.

Fair play: the role of “ground rules” in a mediation

You have made an appointment with the mediator, you have signed and returned the mediation agreement, and now you are in the chair in the mediator’s consulting room, not entirely sure what comes next.

Many mediators will start the first mediation meeting by going through ground rules for the mediation process.

Ground rules set the stage for a respectful and productive conversation. Many of them provide for the rules of etiquette that apply in any good social interaction, but which are often forgotten when tempers are raised. By agreeing upon and abiding by ground rules, a safe environment is created in which to engage fruitfully. This may not be possible outside of the mediator’s consulting room.

A mediator may suggest her own set of ground rules and ask the parties to agree to them, or may ask the parties to come up with their own ground rules. The sort of ground rules a mediator may ask parties to agree to, include:

  • Speak for yourself. Avoid engaging in blame and criticism of the other person.
  • One person speaks at a time. Do not interrupt. (The mediator reserves the right to interrupt in order to keep proceedings on track.)
  • Each person is entitled to a fair opportunity to express themselves fully.
  • Listen to understand, and delay formulating a response until you are sure that you understand what the other person is trying to communicate.
  • Treat one another with dignity and respect. No raised voices or abusive language.
  • Focus on building an agreement for the future, not rehashing the past.
  • Cell phones should be turned off, and placed out of sight, so as not to be a distraction.
  • Keep what is said in the mediation sessions, confidential.

Having agreed to these rules of engagement, the mediator will gently remind the parties of their agreement, should their communication stray away from what was agreed. In this way, the mediator aims to hold the space for both parties to fully and frankly express themselves, be heard, and offer constructive input.

Some mediators do not like to introduce ground rules, as they feel it places them in the position of a parent, refereeing squabbles between two ill-disciplined children. They prefer to expect the best from the parties, and only intervene with guidance if and when problems arise. The difficulty that arises with this approach, is that one party may feel that the mediator is showing bias against him or her, should the mediator raise ground rules after the process is already underway.

Rose Attorneys offers mediation services, with a special focus on divorce mediation.

In any divorce proceedings, a dialogue facilitated by a mediator can bring matters to a quicker and more peaceful resolution than proceeding at once to issuing summons and exchanging proposals via attorneys and court documents.

Especially where a divorcing couple must co-parent in future, a mediation process can be invaluable. While litigating tends to harden positions and further damage the parties’ relationship, mediation offers the possibility of reducing tensions, and building new foundations for a constructive future co-parenting relationship.

If you are interested in more information about divorce mediation, contact Camilla Rose at camilla@roseattorneys.co.za or 074 697 2048.

Mediation: 3 leading misconceptions

Few clients request mediation of their attorney, and few attorneys advise their clients to consider mediation.

Our clients often approach us when they feel that they have exhausted rational dialogue, and the relationship with the other party has completely broken down. A perceived “soft option” like mediation can be unattractive.

“Hierarchy of needs” psychologist Abraham Maslow famously said “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” We in the legal profession are as guilty of this as anyone. Our first thoughts turn to letters of demand, summonses and interdicts – not open, frank discussions with our client’s opponent about their needs and interests. Having been trained to sift through our clients’ instructions to identify rights and obligations, and what is actionable in law, we pay little enough attention to our own client’s deeper interests, needs and feelings.

As attorneys, we often view the emotional content of what our clients tell us as irrelevant – a hindrance in getting to the facts. After weeks, months or years of effort, we may achieve all that we led our clients to hope for, vindicating their rights and forcing the other party to discharge its duties, with costs. Yet our clients may be left with a sense of hollow victory – their real needs and interests, which we dismissed as irrelevant at the very first consultation, were not addressed.

Many attorneys and clients have had a taste of mediation through the conciliation phase of employment disputes before the CCMA or bargaining councils. We approach the conciliation hearing prepared to persuade the conciliator that we are in the right and should give less, and that the other party is in the wrong and should give more. The conciliator, in turn, with a towering pile of case files to deal with in the course of the day, has little time to uncover the real needs and interests at play. She may instead focus on sussing out the parties’ price – how much or how little money must change hands between the parties to get this matter finalised and out of the system, so that she can move onto the next matter?

While mediation is to be formally provided for within the South African court system as an optional alternative to litigation, misconceptions and mistrust abound. Yet, done well, mediation is a powerful tool for transforming disputes. In this article, we consider three leading misconceptions about mediation that may prevent people from making use of this tool.

Misconception #1: Mediation cannot succeed when the parties’ relationship and/or communication is poor.

A skilled mediator can transform the dynamic between the parties – at least for the duration of a mediation session. She is able to establish trust and rapport with both parties. She may set and gently enforce ground rules which hold the space for each participant to be treated with dignity and respect. She models constructive communication, reframing where necessary to remove the sting of unhelpful criticism and blame which hinder listening. By ensuring that each party is heard, and feels heard, the mediator de-escalates tension and prepares the ground for engagement with the real issues.

Misconception #2: A mediation is like a mini-trial. The mediator listens to both sides and decides who is right. One side wins and the other loses.

A mediation is not the same of an arbitration, or a trial. The mediator does not sit between the parties as a referee and hear evidence, and the mediator does not make binding decisions. The mediator invites the parties to tell their stories, helps them identify the real issues at stake, and facilitates a collaborative process through which the parties may be able to find solutions. Any outcome is only by agreement between the parties. The entire process is voluntary, and the parties retain control over the process.

Misconception #3: Mediation is a form of negotiation. The parties have to compromise, and at best both parties win a little and lose a little.

In negotiations, parties tend to harden their positions and engage in power games to try to get as much as possible while giving as little as possible.

A skilled mediator will assist the parties in looking above and beyond their narrow positions, and seeing the bigger picture. She will help the parties properly understand their own needs and motivations in the dispute, and the other party’s needs and motivations. Rather than inching towards a compromise in the middle ground, the mediation process can transform the parties’ understanding of the dispute, and open avenues for resolution that might otherwise not have been discovered.

A skilled mediator will facilitate a creative problem-solving process, to enable the parties to explore solutions that address both parties’ interests to the greatest extent possible. These interests often go beyond the obvious legal issues, and a more holistic and satisfying solution is possible.

With skill, time and effort, the parties may leave the mediation with an abiding sense of satisfaction, having been heard, having listened, and having taken ownership of the dispute and of its resolution. This takes place with the support and guidance of the mediator, who brings a unique and valuable skill-set to bear on the parties’ process.

Rose Attorneys offers mediation services, with a special focus on divorce mediation.

In any divorce proceedings, a dialogue facilitated by a mediator can bring matters to a quicker and more peaceful resolution than proceeding at once to issuing summons and exchanging proposals via attorneys and court documents.

Especially where a divorcing couple must co-parent in future, a mediation process can be invaluable. While litigating tends to harden positions and further damage the parties’ relationship, mediation offers the possibility of reducing tensions, and building new foundations for a constructive future co-parenting relationship.

If you are interested in more information about divorce mediation, contact Camilla Rose at camilla@roseattorneys.co.za or 074 697 2048.

 

“Hoping for the best, prepared for the worst, and unsurprised by anything in between”: the case for signing a living will today

What is a living will?

The living will (also known as an advance healthcare directive) is a document which sets out your wishes for medical care, and directs your medical caregivers in the event that you become permanently incapacitated, with no reasonable prospect of recovery, and unable to make your own decisions.

It is generally used to record a wish to refuse medical treatment that keeps one alive by artificial means, when one faces a hopeless prognosis and is either suffering great distress or left incapable of rational existence.

The living will can direct that any medication (including powerful painkillers) that eases suffering, should be provided, even if such medication hastens one’s death. In short, the living will aims to prevent the fruitless prolonging of death, once medical treatment can no longer meaningfully extend life.

How is a living will made?

A living will should be in writing, and one can be made by any adult of full mental capacity. It is wise to sign the living will similarly to a last will and testament – dated and signed before two independent witnesses aged over 16 years, who also sign the document, each signatory signing in the presence of each other signatory. The witnesses should ideally exclude your next of kin, your doctor, and your heirs in terms of your will, so that there is no possible conflict of interest.

Should a living will form part of your last will and testament?

The living will has an entirely separate function to a last will and testament, and should stand as a separate document in its own right. Families will generally consult a last will only after a death, by which time the medical directives are no longer useful. Living wills can be registered free of charge, along with your last will, with the online SA Registry of Wills and Testaments (www.sarwt.org) , for ease of location when needed.

Is a general power of attorney a better option?

A living will must be distinguished from a general power of attorney (POA). While a POA enables you to appoint another person to exercise your legal rights on your behalf and in your stead, it is only valid for so long as you are yourself mentally capable. Once your mental capacity is compromised, the power of attorney becomes void. A living will prepared before you need it, is a simple, cost-effective route to convey your medical wishes when you are no longer able to communicate. A living will signed while you are of full mental capacity, remains valid even if you lose mental capacity thereafter.

Must my doctors respect my living will?

There is not yet a specific law in South Africa which renders living wills legally binding, but in practice they are to be respected.

The South African Medical Association (SAMA) has issued guidelines for the handling of living wills by South African doctors. SAMA advises its members to respect and uphold a living will as embodying the patient’s expressed wishes, unless there is evidence to the contrary. It counsels patients to ensure that their family members and treating doctors are aware of the existence of their living will and where it can be located, or preferably to lodge copies with their family and doctors. If the living will document is not immediately available, the doctor may treat the patient and should not withhold treatment pending discovery of the document. Treatment can be halted once a document refusing such treatment has been found. Doctors who have moral objections to withholding treatment, should volunteer a referral to another doctor, as the patient has the right to refuse treatment.

What about my loved ones?

When a patient is incapacitated and unable to give directions as to medical treatment, their doctors will look to their next of kin for consent to a specific course of treatment. A living will relieves loved ones of some of the emotional and psychological burden of making end-of-life decisions on behalf of their incapacitated family member. Such direction is particularly useful where there may be disagreement as to the best course of action, sowing conflict among loved ones and leading to guilt and recriminations.

If you would like to draw and sign a living will, contact us at camilla@roseattorneys.co.za or 074 697 2048.