Divorce Mediation

When parties separate the family goes into crisis. It makes sense for the parties to try to resolve the disputes

It is said that divorce is second only to death as a factor that contributes to trauma and anxiety.
 
When parties separate the family goes into crisis. It makes sense for the parties to try to resolve the disputes such as:
 
·         Decisions about separation or divorce
·         Arrangements for care of children and visiting arrangements
·         Housing and other property matters
·         Financial support
 
They can consult attorneys who, traditionally, assume confrontational stances and involve the parties in further trauma and in extremely high emotional and legal costs. Or they can choose to avoid the adversarial approach and appoint a mediator to facilitate a speedy and inexpensive resolution of the disputes.
 
Mediation involves both parties working out arrangements for themselves and their children with the help of the mediator, instead of handing over control of their affairs to lawyers or a court. After all, who knows what is best for the parties and their children – a court or the parties themselves?
 
Obviously, there must be a willingness on the part of both parties to enter into the process. If one is not prepared to give it a try the process will not get off the ground or will simply falter.
 
Parties can go into mediation before, during or after divorce or separation to address any issue.
 
What do mediators do?
 
·         Couples often disagree about the need for separation or divorce. Mediators neither encourage divorce nor press people to continue a relationship if either is unwilling to do so. They encourage couples to reach joint decisions wherever possible, sometimes referring them for counseling.
 
·         Mediators often work together in mediation sessions, e.g. an attorney may work with a play therapist or psychologist.
·         They urge the parties to understand that they are divorcing each other and not their children: for the sake of the kids the parents must remain friends and not involve the kids in the crossfire of their hostilities. The mediator tries to get the parents to buy into some of the following concepts (all in the best interests of the children):
 
·         The parents agree that all decision-making will be done with the best interests of the child in mind.
 
·         The child has the right to be free of bad comments and behavior by one parent about the other.
 
·         The parents shall not badmouth, criticize, roll their eyes, be sarcastic and otherwise be disrespectful of the other parent in the presence of the child and the parents shall not let others do this.
 
·         They work together with the couple to help them to consider the options available and possible ways of reaching agreement, while trying to avoid pressure being put on either party.
 
·         Theyremain impartial anddo not take sides or tell people what they ought to do and they have no power to impose decisions.
 
·         Their role is to reduce conflict by helping couples consider the issues that need to be settled and the various options for settlement that may be available to them. They help couples work toward financial settlements and focus on children's feelings and needs, encouraging parental cooperation wherever possible.
 
·         Mediators treat all discussions as strictly confidential except where someone's life or welfare may be in danger. Either party may use financial information should there be court proceedings. However, discussions to try to resolve differences are "without prejudice" and are legally privileged.
 
·         Mediation sessions usually last one and a half hours. The number of sessions needed depends on the nature of the problems - generally three to six sessions are needed. The charges for mediation are payable at the end of each session and may be shared between the couple in any way they may agree.
 
·         In some case children are included in mediation. If so, specialized skills and resources are needed in order to take the greatest advantage of their participation. It is important that participation does not aggravate their pain or anxiety but maximizes the benefits. When done in a sensitive and appropriate manner by a trained professional the inclusion of the child can add meaningful information for obtaining developmentally sensitive child-focused agreements.
 
·         Often, one party is more strong-willed and dominant than the other. The mediator will try to level the playing field by getting the aggressive party to focus on the interests of the children (rather than on scoring points by posturing).
 
·         At the end of the sessions, the mediator will put together an agreement (called a ‘memorandum of understanding’ or an ‘agreement of settlement’ and, more recently a ‘parenting plan’. The mediator encourages the parties to consult with their respective attorneys to be satisfied that the agreement is fair. After that, the divorce proceeds on an uncontested basis.
 
 
Duty to mediate
 
There is a duty on parties to a dispute to attempt to mediate the dispute and an obligation on opposing attorneys to encourage mediation, before litigation commences.
 
On 25 August 2009 in the case of Brownlee v Brownlee heard in the South Gauteng High Court in Johannesburg, Acting Judge Brassey handed down a very important judgment on the duty of parties to a dispute to attempt to mediate the dispute and on the obligation of opposing attorneys to encourage mediation, before litigation commences. The judgment extols the virtues of mediation and capped the fees of the attorneys for both parties because they had failed to advise their clients to go to mediation at an early stage. Normally the unsuccessful litigant pays the costs of the successful one. The judge expressed his disapproval of the parties’ conduct by making each party bear his or her own costs. This case is likely to make it risky for attorneys not to advise their clients about mediation and for clients to unreasonably refuse to attempt mediation. Read more here.
 
I have assisted as a mediator in several sessions over the years, both alone and together with mental health professionals. Sometimes the sessions are extremely successful and achieve what the parties set out to accomplish: a resolution of the disputes and a lessening of the tension that previously existed. Often the process is unsuccessful as one party scuppers the session through his or her incalcitrance.
 
In my experience, where mediation is successful the kids fare far better than children of parents who hate each other and thrive on lengthy and expensive litigation.