Choosing mediation over litigation in the event of a divorce

Many couples who choose to divorce, may find themselves in a somewhat diminished situation when the proceedings are all over.   Although some need the expertise of lawyers, often well trained mediators can provide a somewhat cheaper alternative when discussing division of assets, maintenance and the compilation of a parenting plan. 

 Divorce mediation provides a less costly and more civil alternative to separation or divorce.

  • Solutions sought in mediation take into account the needs of all family members and aims for a win-win situation to an often emotion filled negotiation.
  • As both parties are involved in the decisions, they are more likely to uphold their agreements.
  • It is a future orientated process, with little focus on the past and full focus on the present and future.

The more important aspects of mediation are:

  • It is non-adversarial – both parties are fully involved with any decisions made
  • It is mutual – if there is not mutual agreement, the process does not work
  • It is empowering – Each member controls all the decisions of his or her life. Usually drawn from the Psychology and Legal Profession, trained mediators ensure that the parties remain focused, confidentiality is maintained and communication remains positive. They assist with the exploration of alternative solutions, while providing up to date information and moving the process to a fair outcome.

Mediation is said to be successful if:

  • There is full disclosure of all relevant facts
  • The outcome meets the joint and individual needs of all parties involved
  • There are no victims as a result of the agreement
  • Channels of communication have been open and direct
  • The parties have made empowered decisions and demonstrated negotiation skills.
  • The process is unhurried and the mediators draw up an agenda reflecting the concerns of both parties.

Stage one:

Initial contact, explanation of the process and creating trust, explaining and setting ground rules and contracting for mediation.  The couple will sign a full agreement to mediate at this stage and an agenda will be set for future sessions.

Stage two:

The agenda will be agreed upon and relevant information, such as proof of income and assets will be collected.  Often a child interview will be conducted at this stage (by a qualified counsellor) to ascertain how the children understand the process of divorce and they are also given an opportunity to express their wishes.

Stage three:

The parties involved will clarify their positions and be guided into generating options.

Stage four:

Here the parties involved negotiate and make decisions.  These decisions are not binding until a Memorandum of Understanding has been signed.

Stage five:

The process culminates with the writing up, and signing of, the Memorandum of Understanding and a Parenting Plan.  Having agreed on all decisions, the parties are then free to take this to an attorney of their choice to be converted into a final divorce document and to legally end the marriage.

Mediation is therefore, voluntary, self-empowering, goal directed, non-adversarial, mutual, and confidential and provides a cost effective way of ensuring that all parties concerned can separate with the confidence that an optimal agreement has been reached.  Parties may return to mediation at any time to made amendments to the parenting plan or maintenance agreement knowing that they have a means of problem solving for the future.

Further information can be obtained from:

Carol Nader. 0117873486  carolnadercounselling.co.za

The South African Association of Mediators website (SAAM). www.saam.org.za

Readings:

John Haynes (1989): A guide to Divorce Mediation: Haynes Mediation Associates.

www.mediate.com/articles/saporo.cfm

Jacqueline B Meyerowitz (1995): Unisa Department of Social Work, Study Guide 2, Marriage Guidance and Counselling. 1995.  Revised July 2010

link.springer.com/content/pdf/10.1023%2FA%3A1021647526096.pdf

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