Advantage of mediation: Discover how mediation saves time, reduces costs, and minimizes the emotional strain of legal battles.
Family mediation empowers the family members: Understand how this process gives you the power to make your own decisions rather than leaving them to a judge.
Important issues to ensure a successful mediation: A guide to the essential factors - like transparency and willingness, that lead to a productive agreement.
Advantage of mediation
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.
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.”
The most important issues to ensure a successful mediation are:
Procedural fairness – each party must feel that they have been given the right to be adequately heard.
Full and open disclosure of financial issues;
Mediator neutrality;
Confidentiality of discussions – a safe space is to be created and held so that all aspects necessary to bring about a resolution can be explored;
Freedom to terminate the mediation at any time;
The skill of the mediator.
Parties being properly prepared and advised for mediation.
Parties understanding their right to contract advisors of their choice during the process eg. lawyers, counselors, therapists, financial/spiritual advisors.
WHEN CAN MEDIATION BE USED
• Divorce
• Maintenance – child and personal
• Custody/access/visitation disputes
• Proprietary disputes
• Post-divorce disputes eg. which school a child must go to.
• Permanent relationship disputes
• Same gender relationship disputes.
MEDIATION IN ACT 28 OF 2005 The object of the children's Act as set out in Section 2 is that: best interests of the child are of paramount importance, to make provision for structure, services and means for promoting development of children; to strengthen and develop community structures and to generally promote the protection and well-being of children. In Section 6, general principles are set out to assist in implementing the legislation and guiding proceedings, actions and decisions concerning a child. The Act recommends that a confrontational approach and delays are to be avoided. Section 7 relates to the “best interests of the child standard” and this Section is relevant with regard to mediation as specific provision is made for action or decisions to be taken which “would avoid or minimize further legal or administrative proceedings in relation to the child”. Mediation is similarly envisaged in Section 29 which relates to court proceedings as Section 5(a) provides that a court may, for the purposes of a hearing order that “a report and recommendation of the Family Advocate, Social Worker or other suitable qualified person must be submitted to the court”. Therefore should the parties reach agreement through the mediation process, that mediated agreement would be referred to and taken into consideration by the court.
