Divorce Mediation - Anthony-Gooden Incorporated will assist you!

Divorce Mediation is a well established, client friendly and cost effective way for spouses to reach a settlement of their divorce related issues.
These general divorce issues, which must be addressed in any divorce settlement process, are division of marital property, child related agreements and child support and spousal maintenance. Whether parties litigate these issues at trial or choose a more cooperative and collaborative approach like mediation, the issues remain the same and must be addressed before the case is resolved The use of mediation is foreign to many divorce attorneys. Disagreements must be dealt with creatively rather than employing the threat of litigation.

The divorce mediator seeks to resolve disagreements by such means as creative problem solving, the use of non-threatening dispute resolution approaches and an ethic of supporting open lines of communication between the parties. One important goal of mediation, especially when continued joint parenting of children is involved, is to support cooperation in the transitioning relationship between the parties. One of the benefits of divorce mediation is the directness of the communications between the parties. In the traditional adversary system, the process starts with the attorneys conversing with their clients; next, the attorneys must explain and interpret the client’s point of view to the opposing attorney; after that come the settlement negotiations with the attorneys trying to balance the needs of their clients against the positions of the other party; and this can go on for some time. One can imagine how costly, time consuming and distorted communications can become, especially with the layers of defensive arms length negotiating and strategizing that is inherent in the adversary system.

What is the difference between mediation and facilitation?
Mediation is a voluntary process. Facilitation is initially voluntary, the parties having agreed to it, and is then made an order of court, also by agreement. The facilitator is appointed in terms of the Court Order. In mediation, the parents come to agreement regarding an issue. In facilitation, the facilitator will always first attempt to mediate a dispute between the parents, but, if they cannot come to agreement, the facilitator has the authority to make a decision that is binding on them.

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An important advantage of mediation is that it allows divorcing parties greater control over the consequences of their divorce. Parties are actively involved in the mediation process and can themselves make the important decisions related to divorce.

As a result of this, and also because parties are able to make decisions regarded as fair and right within their particular cultural and moral frame of reference, they are more likely to honour these mediated agreements. Research in this regard has shown that parties, for example, adhere closely to mediated agreements long after their divorce (see Hauser Good divorces, bad divorces: a case for divorce mediation (1995) 18; Goldberg "Family mediation is alive and well in the United States of America: a survey of recent trends and developments" 1996 TSAR 370).

Mediation also improves communication between divorcing parties. Mediators are schooled in, amongst other things, the social and behavioural sciences, and know what techniques and strategies to use to lessen conflict between parties and to bridge communication gaps. Meaningful communication between parties usually uncovers all sorts of problems, including underlying issues that often remain hidden in divorce litigation (see Scott-MacNab & Mowatt "Mediation and arbitration as alternative procedures in maintenance and custody disputes in the event of divorce" 1986 De Jure 316; Rogers & Palmer "A speaking analysis of ADR legislation for the divorce neutral" 2000 St Mary's Law Journal 875-876).

Constructive communication between parties also betters the level of cooperation between parties during the divorce process and the period thereafter. Although, on the one hand, mediation teaches parties how to deal with conflict in a non-aggressive way, on the other hand, it gives them the opportunity to express their feelings of bitterness, disappointment and anger.

Furthermore, mediation allows parties to deal with those matters they feel are important, but which the law may consider frivolous or unenforceable. Therefore, unlike in litigation, the mediation process is not restricted solely to legal issues, and allows parties to deal with all facets of divorce. The mediation process is also more accessible than litigation.

It is an informal and simple process which people can understand and in which they can fully participate (see Dorf, Hendler & Alion 1995 "Mediating Family Law Disputes" Maryland Bar Journal 20). Furthermore, it is a flexible and creative process which takes place in an unthreatening atmosphere and takes religious and cultural differences into account. Therefore parties can easily relate to the mediation process, especially where the mediation services are offered by community centres.

Family mediation empowers the family members as they work towards ending their conflict, allowing them to maintain control and ownership of the process. It emphasizes the importance of cooperation and fairness, especially when it comes to the wellbeing of children and dependants.

If you are divorcing, mediation provides a forum for you to discuss all the difficult issues of your individual situation. This is done in a space that is structured and safe, in the presence of a mediator, a person with no agenda or bias about your situation.

“As highly experienced family mediators, we help resolve your divorce and parenting disputes by tailoring our service around the needs of your particular situation.
” As family mediation specialists, we have a unique in-depth understanding of the complexities of a marriage breakdown and the difficulties you may face when your family unit is divided.

It is for this reason that we work together to help guide you and you ex-partner to make important decisions that are always focused on your children, their individual needs and what will work best for your family during and after the divorce.

The aim of mediation is to create agreements between you and your ex-partner that are specific, realistic and which will help you all move forward to the next chapter of your lives.

“Mediation provides the possibility of peace, a space to be heard and a place to talk through your issues while creating practical solutions for a more amicable future.”

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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. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon 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 she/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

Family mediation is based on the same principles that apply in mediation generally;-
• Voluntariness
• Transparency
• Mutual Respect

Family mediation is non-confrontational in nature and progressive.

It encourages parties to focus on the future and problem solving strategies rather than the problems of the past. The process is also "child centered" whereby the parties are encouraged to make special provision for the needs of children where the subject parties of such mediations have childcare related issues.

In the recent case Van den Berg v Le Roux [2003] 3 All SA 599 (NC), which dealt with the variation of a custody order after divorce, Kgomo JP ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter.

He ordered that "[o]nly subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute" (614g). In delivering this decision the court effectively subjected the parties to mandatory family mediation. In another recent case Townsend-Turner and another v Morrow [2004] 1 All SA 235 (C), the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy's maternal grandmother.
The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access (256f-h). The court ordered that the mediation had to commence within two weeks of the granting of the order (256j) and that it should continue for a period of at least three months or for the duration of at least four mediation sessions (257a).
The parties were also ordered to share equally the costs of the mediation (256i). From a slightly different angle mediation also came under the spotlight in the Zimbabwe High Court in G v G 2003 (5) SA 396 (Z). In this case it was pointed out that the adversarial system of litigation (which also applies in Zimbabwe) is often inimical to the interests of children when questions of divorce, custody and access are involved (412A). The court referred to a comparative study of parties who went for mediation and others who left it up to the court to adjudicate their differences which showed "... very clearly and definitely, that there was greater satisfaction among both children and parents in those cases where mediation was used as opposed to an adversarial approach" (412D-E).

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