Overview of Family & Divorce Mediation
Family and Divorce Mediation is a confidential and without prejudice dispute resolution process aimed at assisting families and couples in resolving their legal conflicts constructively and outside of a court environment. The process provides parties with an opportunity to discuss issues in a structured and respectful manner using an impartial third-party known as the Mediator.
The primary focus of Family Mediation is to assist parties in identifying practical and future-focused solutions to their dispute. Throughout the process, parties are encouraged to communicate openly with one another. They are also encouraged to jointly explore possible options for the resolution of their matter.
As a rule mediation is a voluntary process. In some areas of South Africa such as Gauteng, attendance at mediation is compulsory before the High Court will provide a trial date for a matter. Mediation remains however a voluntary process insofar as the settlement of a matter is concerned. In other words, parties are not compelled to settle their matter at mediation but they must have at least tried to resolve their matter in good faith at mediation.
Why Families Choose Mediation
Families often choose mediation because it provides not only a structured and confidential process outside of the legal arena but also because it is a cost-effective alternative to litigation. The process allows parties to participate directly in discussions concerning their future arrangements. It also allows them to maintain greater control over both the process and the outcome of their dispute.
The Role of the Family & Divorce Mediator
The role of the Mediator is to assist the Parties to resolve their dispute.
The Mediator assists the parties in identifying the issues requiring discussion. The Mediator also helps facilitate the communication concerning those issues, and supports the parties in exploring options for resolution of their matter. They do not however determine the outcome of the dispute, but rather assists the parties in making their own informed decisions.
For Family Mediation matters, all resolution must be centered on meeting the best interests of the child. Family Mediators must have a good understanding of the dynamics governing families. They also need to understand the critical role that various role-players assume in the life of the child.
A Family Mediator may not be involved in a matter where they have an interest in the outcome. The reason for this is the Mediator is required to remain neutral in a matter. The requirement of neutrality focuses both on the Mediator remaining neutral concerning the parties as well as neutral concerning the outcome of a matter.
A Mediator may not take sides with the parties, nor may the Mediator assume the role of Judge and impose their beliefs or decisions on the parties. Where a Mediator is also an attorney, the Mediator may not act as the parties’ legal representative. A Mediator who is a psychologist or social worker may not also offer counselling and therapeutic services to the parties.
A Mediator should ideally throughout the mediation process encourage the parties to seek independent legal advice on any question which they may have regarding their matter. This requirement is of critical importance prior to the parties signing any draft agreement coming out of mediation, as once a document is signed it is binding.
How Long Does Mediation Take?
The number of sessions required for a Family Mediation is dependent upon the complexity of the issues in dispute. The number of sessions required will also depend upon the willingness of the parties to engage constructively in the mediation process and to work towards possible resolution of the issues in dispute. As a rule, parties can expect the mediation process to take between three to six sessions. Sessions are scheduled for between one and a half to two hours each. Given the process followed for a Mediation, it is rare but not impossible for a Mediation to be resolved in the first session.
Advantages of Family & Divorce Mediation
Mediation is an alternate dispute resolution process. Compared to litigation, mediation offers faster resolution of the area(s) in dispute. Mediation is also less expensive than litigation. Additionally, mediation is an effective means for maintaining on-going working relationships between the parties – this is an especially important consideration when children are involved.
One of the significant advantages of mediation is that it assists parties in developing more constructive ways of communicating during periods of conflict. This can be particularly beneficial where parties will continue to interact with one another in the future, such as where they share parenting responsibilities for their children.
Issues Capable of Mediation
Apart from cases of severe domestic violence, most areas of dispute within the family can be mediated.
Family Mediation is capable of addressing a wide range of family-related disputes. These may include divorce mediation issues, parenting arrangements and Parenting Plans, maintenance disputes, division of assets, communication difficulties, elder mediation matters, relationship and marital mediation matters, pre-marital agreements, and certain disputes involving international child relocation or the Hague Convention.
Learn More
For a more detailed discussion of the principles and foundations of mediation, see our guide to Family Mediation in South Africa. Please also see a short Bio on Tracey-Leigh Wessels’ mediation ethos and expertise
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