Separation and divorce are among the most distressing and disruptive events that individuals and families can go through. They are extremely emotional processes which involve making decisions and reaching agreements on sensitive issues which have a direct, long-term impact on families. Making decisions regarding your children’s upbringing, calculating maintenance costs or dividing assets and liabilities justly can be very difficult under these circumstances. Objectivity and problem-solving are often dominated by emotion and as a result, couples’ resort to litigation. Litigation can be expensive, emotionally draining, time-consuming and have a long-lasting negative impact on family relationships.
Divorce or family mediation is an alternative to litigation. It is a form of Alternative Dispute Resolution (ADR) designed to resolve disputes pre, during or post-separation or divorce. The process empowers participants to shape their own agreements regarding parenting plans, maintenance calculations and division of assets and liabilities. Because they are shaped by the parents themselves, they are typically more fair, practical and sustainable. These agreements are suited to meet the needs of each family’s unique circumstances. When children are involved, they are developed around the children’s best interests.
In my experience a holistic approach to managing the separation or divorce process is ideal. The reason for this is that the focus of mediation is not solely the termination of the marriage or relationship. Mediation focuses on the entire family, the continued relationship of the parties and how to best prepare the parties to anticipate and manage future scenarios. Therefore; in some instances, the process may include the brief involvement of psychologists or social workers, financial coaches and, to formalise agreements, an attorney.
The underlying principles of Divorce Mediation
Divorce mediation has five underlying principles that will help you better understand the mediation process:
- The process is voluntary (unless ordered by the court). Both parties need to agree to mediate and sign an agreement to mediate. However, at any stage, either party can terminate the process.
- Mediation is confidential (except for some situations), providing a safe space for parties to openly communicate. What is discussed in mediation is without prejudice, therefore, cannot be used in court. This fosters more open dialogue which in turn can lead to a clearer understanding of the issues and result in more creative and flexible solutions.
- The mediation process is empowering. Why? Because empowerment is synonymous with taking responsibility and this is what the mediation process encourages and allows parties to do. It recognises that nobody is better placed to create a family’s future than the family itself.
- Objectivity is central to the mediation process. A mediator is an independent, neutral third-party who conducts the mediation. The mediator’s role is to help both parties identify, negotiate and come to a mutually-acceptable agreement on the various issues highlighted by the parties themselves.
- The process of mediation is unique. You determine what issues need to be addressed, you decide on the solution, you control the outcome and as a result, you are the decision makers for your family’s future.
Under what circumstances can divorce mediation be used?
Divorce mediation can assist families to reach agreements on many issues such as:
• Parenting plans
• Child maintenance agreements
• Spousal maintenance agreements
• Division of assets and liabilities and accrual calculations
• Family disputes
• Matrimonial property regimes
Research backs mediation
Mediation in the 1970s was effectively an experimental approach supported by a few practitioners. Today, the growth of family and divorce mediation is revealed in the volume of literature which describes the process, models and techniques that can be used, promoting the use of it, the role of the mediator and how to select a mediator are just some of the avenues that have been researched extensively. Examples of research findings are:
- De Jong (2010), found that mediation is a way of helping parties to negotiate agreements and renegotiate relationships in a more adaptive way than adversarial procedures.
- Lowenstein (2009), describes mediation as, one of the interventions in place to put parents in control of the decision making regarding their divorce and future of their children.
- Shaw (2010), conducted research and reported that mediation has been shown quantitatively to be superior to litigation in dealing with divorce cases.
- Research by Kelly (2004), has shown that divorce mediation is helpful in resolving emotional and agreement issues in family conflict, which could have a positive impact on children’s adjustment to the divorce
Judicial stamp of approval
Various court judgements illustrate that both the legislature and the judiciary fully recognise the importance of mediation in South Africa. The following are examples of court judgements:
- In the case of Brownlee v Brownlee, the court emphasised the parties duty to attempt to mediate their dispute prior to appearing in court. Also, highlighted was the obligation of the law practitioners to advise and encourage their clients to enter into divorce mediation was also highlighted.
- In the case of Van den Berg v Le Roux, the court ordered that the parties undergo mediation for all future child contact disputes with regard to their 10-year-old daughter. Only after completion of the mediation process could either of the parties approach the court for a ruling.
- In Townsend-Turner and another v Morrow, the parties were ordered to attend mediation for a period of three months or at least four sessions in an effort to resolve the issue of access between of a 7-year-old boy’s father and his maternal grandmother.
The Benefits of divorce mediation
As an accredited family and divorce mediator, apart from where there is substance abuse, domestic violence or major power imbalances in the relationship, I am convinced that mediation is a better option than litigation to solve disagreements. The reason being is that agreements reached in the mediation process are suited to meet the needs of each family’s unique circumstances which involves the children’s best interests. Therefore, mediation is a compelling alternative to litigation with numerous benefits such as:
- Saves time
- Reduces financial costs considerably
- Children’s best interests are put first
- Lessens the emotional turmoil on children and the parents
- Significantly improves the chances of effective co-parenting
- Enables parents to take control of decisions which will affect their family’s future
- Holistically addresses the situation
“In order to reach a mutually acceptable outcome, a shift in thinking is required. Mediation is not about who argues their case more convincingly. This undermines the process. Rather, parties adopt a mindset of appreciative inquiry where the focus shifts from the causes of the problems to envisioning future possibilities”