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FAMILY LAW MEDIATION
by Sheila Pollard
Divorce proceedings often take a long time to complete and in the meantime, the spouses usually suffer great stress, frustration and financial hardship. The children may be traumatised as a result, and the legal costs can be enormous – even if an agreement is reached before going to Court.
Most people who are facing the prospect of divorce automatically assume that an attorney must be their first port of call. They are unaware that there is another option open to them to allow them to negotiate their own divorce agreement with professional help. That option is family law mediation. Most lawyers, too, are either unaware of or unwilling to advise their clients to consider this option. As a result mediation is a process that is not well known to the average person going through a separation, despite the many benefits it can offer a family that is experiencing the pain, expense and conflict of divorce. Attorneys are not excluded from the process, rather they give important advice to their clients as the process continues and particularly at the end, once agreement has been reached but before any document is signed.
How does the process of divorce mediation work? The husband and wife together attend a number of sessions (usually somewhere between two and eight sessions altogether, each two hours long) with the mediator, who is completely impartial and does not side with either of the spouses.
The mediator helps them to:
- identify the problems which need to be resolved and draw up an agenda for discussion;
- collate all the necessary financial information so that facts and figures are available to both spouses;
- work through each problem and find acceptable solutions;
- negotiate the terms of their divorce relating to children, assets, debts and monthly maintenance payments;
- reach an agreement which will be summarised in writing by the mediator and which can be checked by the attorneys and become the basis of a simple and inexpensive divorce document;
- find ways to remain effective parents to their children during and after the divorce.
Once the mediation process has been completed, each spouse is advised by the mediator to have the agreement checked by his/her own attorney. Once the lawyers have been consulted and the agreement has been signed, the divorce can be finalised very quickly because it will not be contested. The spouses will have a choice of proceeding with the divorce in the High Court (where they will need assistance from an attorney)or in the Southern Divorce Court, where they will be able to manage the divorce proceedings on their own (and therefore at no charge).
In the practice of family law mediation, there is the additional option of co-mediation, where two trained mediators work together with the spouses to resolve all the issues relating to the divorce. One of the co-mediators will be an experienced family lawyer with specialised training in mediation and the other will be an experienced family counsellor (usually a psychologist or social worker) with specialised training in mediation. The family will then have the benefit of the legal experience to deal with the finances and the counselling experience to deal with the family dynamics and the question of the children's best interests.
The reasons for choosing mediation are:
- The sessions take place on "neutral ground', which helps to deal with the emotions and conflict between the spouses;
- The children benefit from the reduced level of strain between their parents, especially because they do not become weapons in a Court battle;
- The process is often completed within a few weeks, which brings down the legal costs;
- After the mediation process is completed and an agreement is signed, the final divorce order can be obtained within another month or two (depending on which Court is chosen);
- The spouses have control over the whole process, which seldom happens if they go to Court;
- When an agreement has been reached through mediation, it is more likely that the spouses will comply with the agreement after the divorce than if the Court has imposed an Order on them;
- In the longer term, spouses who have been to mediation will tend to communicate better with one another regarding the children after the divorce is over, because they will have learnt some of those skills by going through the mediation process.
The mediation process can help those who:
- are separating but have not decided whether they want a divorce;
- intend to get divorced but have not yet started legal proceedings;
- are in the middle of a divorce dispute and decide they want to try and reach a settlement;
- are already divorced but later on have disagreements regarding children or finances;
- have never been married to each other but have disputes regarding children or maintenance or other financial issues;
- are involved in any kind of family dispute (perhaps not related to a divorce at all), for example a dispute regarding an inheritance.
Litigation (going to court) is a very expensive and destructive process for families going through a divorce. It can lead to open warfare between couples, whose children are inevitably caught in the cross-fire.
Mediation allows the couple to retain control of their own process, takes into account and deals with the emotional factors and teaches parents skills in managing their parenting though they are no longer together. It is a far more appropriate forum for the resolution of family disputes than a court of law. In short, it is the best way to give a dead marriage the dignified funeral it deserves.
Sheila Pollard is an attorney and family law mediator who has practised family law for twenty-one years and has been a qualified mediator for fourteen years. She is a member of FAMAC (Family Mediators Association of the Cape)
Sheila is passionate about helping families in crisis to resolve their differences amicably so as to minimise trauma to the children who are always caught in the middle of the conflict.
Ph: 021-715 1465
Fax: 021-712 9707
spollard@iafrica.com
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