Mediation, in general, is a voluntary process in which parties to a dispute utilize the services of an independent third party or ‘mediator’ to facilitate the discussions between the parties with a view to settling their disputes amicably. Where minor children are involved, our courts may in future even enforce mediation as a precursor to court action. Importantly, a mediator does not adjudicate on the disputes between the parties or makes decisions on behalf of the parties, but facilitates the discussion process to try and allow the parties to agree on workable solutions.
The success of any mediation, including divorce mediation, is dependent on the willingness of both parties to engage in discussions in order to find solutions. The parties themselves control the outcome of the divorce mediation process with the mediator merely assisting the achievement of consensus which is to the advantage of both spouses and children, where applicable.
Divorce mediation is usually conducted in multiple sessions (often between four to six sessions) of one to two hours each lead by a divorce mediator. One of the most positive aspects of the divorce mediation process is the flexibility with which it can be conducted. The mediator can adapt the divorce mediation process in accordance with the needs of the parties and the nature of the disputes between the parties. It must be noted that divorce mediation is not intended to function as therapeutic or marriage counselling sessions and will generally only be relevant where the parties have reconciled themselves to the fact that they do indeed want to divorce.
When divorce mediation?
Our courts have ruled that in appropriate cases attorneys have an obligation to advise their clients to attempt to mediate their disputes before resorting to litigation. In general however, the use and applicability of divorce mediation remains dependant on the facts of each case and a number of factors must be considered, including the financial implications thereof and the needs of the parties affected by the divorce, before a decision to use divorce mediation is made.
While divorce mediation proceedings may be less expensive than contested litigation proceedings, an uncontested divorce (ie where. the parties are in full agreement as to the consequences of the divorce) is usually still less expensive than mediation proceedings. Mediation proceedings will in all likelihood be a faster and a less stressful experience than contested litigation proceedings, and where children are involved, the use of mediation proceedings may also be to the advantage of children, as their future is decided by their own parents and not by the judicial system. Where a number of unresolved disputes exist between the parties, it would also be advisable to consider divorce mediation before the institution of divorce litigation proceedings.
Advantages and shortcomings of divorce mediation
As with every process, divorce mediation has advantages and disadvantages.
The advantages of divorce mediation can be summarized as follows:
- It is less expensive than contested litigation proceedings.
- It can be faster than contested litigation proceedings.
- It helps the parties to arrive at an agreement that is mutually acceptable to them.
- It can help reduce tension, anger and misunderstanding and improve communication between the parties.
- It can be more sensitive to the needs of children in that the parties are provided the opportunity to co-operate and agree with regards to the care and upbringing of the children.
- It focuses on the future rather than the past by allowing the parties to reach a compromise which is considered just and fair.
A downside to divorce mediation may reside with the choice of mediator. The mediator may be a skilled councillor but not necessarily possess legal knowledge. This in turn could impact on the quality of settlement agreement to be concluded between the parties, even requiring additional legal costs to have the agreement legally reviewed.
Mediation may also not be appropriate in instances where for example a history of family violence exists between the parties or the possibility of an amicable resolution of the issues is not possible given the personalities of or history between the parties.
Mediation can help parties to resolve their differences regarding important aspects such as parental rights, future maintenance responsibilities and division of assets before engaging in formal litigation. It can also help shorten divorce proceedings, which in turn helps shortens the stressful process of divorce for the parties and enables them to put the past behind and move on with their lives. In the event that divorce proceedings are unavoidable, discuss the possibility of divorce mediation with your councillor or divorce attorney and consider whether this form of dispute resolution could not perhaps be appropriate to your situation.