Mediation gives people the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a courtroom.
Mediation is an informal way to resolve a conflict facilitated by the mediator, a neutral third-person, who encourages problem solving. As a society though, we are still having a hard time with the notion that two adults could dissolve their relationship in the same way they began it; by working together with mutual respect and understanding, without any need for legal ‘advice’.
In the South African case of Brownlee, Acting Judge Brassey advised divorcing parties that mediation should be resorted to first to discuss the prospect of a settlement before they engage in litigious exchanges. He further said that attorneys bear an obligation, prior to litigation, to encourage their clients to mediate a settlement instead of facing the delays and expense of running a trial. This judgement well proves that family mediation is alive and welcome within the South African legal system.
FURTHER BENEFITS OF MEDIATION
COSTS AND TIME SAVING
In mediation you gain the benefit of one professional for the price of two. You both are in the company of a single professional, who can give you information at the same time that is pertinent to your particular circumstances, instead of you each paying a separate professional for advice. The costs involved in mediation are discussed with you both upfront.
By working towards a goal in your mediation sessions, you will shorten the time spent sending papers back and forth and waiting for responses. Mediation typically only takes days and allows a more reasonable timetable for resolving a dispute at the convenience of both of you and the mediator.
COMMUNICATION AND DECISION-MAKING
Communication between the two of you is direct, since you attend the mediation sessions together. You will be encouraged to behave in a collaborative manner so that progress is made quicker. If both of you look at it in most instances your concerns are similar:
- How are we going to divide our assets and liabilities in a way that is fair to each of us?
- How are we going to live separately on the same income that once supported us together?
- How are we going to support and parent our child(ren) in a manner consistent with how we did so while living together?
A well-trained mediator is always better at helping you communicate with each other in a less destructive manner and is not fully focused on the legal technicalities, but rather the practical realities that you both face. You are in control of the decisions you make and these are therefore more predictable and easier to comply with, because they are tailored to suit your specific circumstances.
THE VOICE OF YOUR CHILD(REN)
During mediation, you will both discuss the contents of your parenting plan, which is a blueprint for the ‘access’ and ‘custody’ of your child(ren). Your child(ren) will then be given the opportunity to hear such contents and understand the way forward. They will also understand that the decisions made by their parents were done so with their best interests in mind.
The Children’s Act of South Africa states that the voice of the child must be heard when the circumstances of their lives are changing significantly. In my experience, from mediating a divorce/separation, many children who have been in a ‘child interview’ felt empowered and less insecure of their future with mom and dad when they became part of the mediation process. Many of them have acknowledged that they are ‘proud’ of their parents because their parents have ‘stopped fighting and started talking’.
