What is Family & Divorce Mediation?

What Is Family & Divorce Mediation?

When people hear the word mediation, many immediately think of divorce. It is probably the context in which most people have encountered the term. But family disagreements are not confined to couples whose marriages are coming to an end.

A disagreement between parents about a child's schooling or care arrangements, adult siblings who cannot agree whether money given by one to the other was a loan or a gift, or family members who have different views about the care of an elderly parent - these are all situations where family mediation may be helpful.

Sometimes the disagreement might seem relatively minor to an outsider, but that doesn't mean it is unimportant to the people involved. What appears to be a simple issue can become a source of considerable tension, particularly when it involves people who have a long history together.

Family mediation and divorce mediation

It is useful to distinguish between family mediation and divorce mediation.

Family mediation deals with disputes and disagreements between family members. These may involve parents, siblings, adult children, grandparents or other family relationships. The people involved don't necessarily need to be separating or divorcing. They may simply have reached a point where they are struggling to resolve a particular issue between themselves.

Divorce mediation, on the other hand, focuses specifically on couples who are separating or divorcing, and the decisions that need to be made as they bring their marriage to an end. These might include arrangements for their children, financial responsibilities, property and the practicalities of establishing separate households.

Although the circumstances and issues may be quite different, both forms of mediation draw on the same fundamental skills. The mediator helps people communicate, understand the concerns behind their respective positions, explore possible solutions and, where possible, reach agreements.

Mediation is also used in other settings, including commercial, workplace, labour and community disputes. Each requires its own knowledge and understanding, but the underlying skills of facilitating discussion and helping people resolve disagreements remain relevant. Sometimes the dispute might even be about something as ordinary as a borrowed power tool that was never returned. For the purposes of this series, though, I'll be concentrating on family and divorce mediation.

So, what does a mediator actually do?

A mediator is an independent and impartial person who facilitates discussion between people who are in disagreement. They are not a judge, magistrate or arbitrator. They don't represent either party, take sides, decide who is right or impose a solution.

Their role is to help the people involved have a constructive conversation, identify the issues that need to be resolved and explore ways forward. This may sound relatively straightforward, but when emotions are running high or communication has broken down, even having that conversation can be difficult.

A mediator helps to keep the discussion focused and ensures that each person has an opportunity to express their views and concerns. They may ask questions, clarify what has been said, or draw attention to areas where the parties may have more common ground than they initially realise.

An important feature of mediation is that the parties retain control over the outcome. Family mediation is generally entered into by agreement, with both parties willing to participate in the process. In some court-related matters, there may be procedural requirements to attempt mediation, but that doesn't mean anyone can be forced to reach a settlement. The mediator can encourage discussion and help the parties consider different possibilities, but cannot require either person to accept a proposal or impose an outcome.

Looking beyond the positions

One of the challenges in any dispute is that people can become fixed on what they want, or what they believe they are entitled to. These are often referred to as their positions. While those positions are important, they don't always tell the whole story.

For example, one parent may insist on having the children every weekend, while the other is equally determined that weekends should be shared. It might appear that there is very little room for compromise.

But what if the first parent works during the week and sees weekends as their only real opportunity to spend meaningful time with the children? And what if the other parent is concerned that they are losing the opportunity to enjoy ordinary family time with the children themselves?

Understanding these underlying concerns, sometimes referred to as interests, can change the nature of the conversation. It doesn't mean that either parent will necessarily get exactly what they initially wanted. It does, however, open the possibility of exploring arrangements that address the needs and concerns of both parents, while keeping the children's best interests at the centre of the discussion.

The same principle can apply to other family disagreements. If two siblings disagree about whether money was a loan or a gift, there may be more to the dispute than the money itself. Their expectations, financial circumstances, recollections of the conversation and feelings about how they have been treated may all play a part.

The mediator helps people look beyond the immediate disagreement and consider what is really important to them. That doesn't automatically resolve the dispute, but it can create opportunities for a different kind of conversation.

Confidentiality and reaching agreement

Confidentiality is another important part of mediation. The discussions that take place are generally confidential and without prejudice. This allows people to speak openly, raise concerns, explore possibilities and make proposals without assuming that everything said during mediation will later be repeated in court or used against them.

The mediator does not provide the court with an account of who said what, what concessions were offered or how the parties arrived at their decisions. There are, however, limits to confidentiality, which are explained as part of the agreement to mediate and are subject to applicable legal requirements. Where mediation takes place within a court process, certain procedural reports may also be required, recording the outcome without setting out the substance of the discussions.

Where the parties reach agreement on one or more issues, the agreed terms must be reduced to writing and signed by the parties. This is important because it provides a clear record of what has been agreed and what each person has undertaken to do.

Depending on the circumstances, the written agreement may take the form of a parenting plan, a divorce settlement agreement or another written arrangement. Where appropriate, the signed agreement may be submitted to court to be made an order of court. In other family disputes, court involvement may not be necessary. It is also important that the parties understand what they are agreeing to and, where necessary, obtain independent legal advice about the implications and formalisation of the agreement.

Is mediation always appropriate?

Although mediation can be helpful in many family disputes, it isn't necessarily suitable for every situation.

For mediation to work, both people need to be able to participate freely and have a genuine opportunity to express their views and consider the options available to them. Where there is domestic violence, intimidation, coercion or a significant imbalance of power, that may not be possible.

A responsible mediator needs to consider whether mediation is appropriate in the circumstances and whether safeguards or a different approach are needed. The fact that mediation is available doesn't mean it is automatically the right approach for every dispute.

Ultimately, the mediator does not decide what the future should look like. The people involved do. Mediation doesn't guarantee that every disagreement will be resolved, but it can help people move beyond entrenched positions, understand one another's concerns and work towards a way forward. Even where a complete agreement isn't possible, the process may help clarify what has been agreed, what remains in dispute and what needs to happen next.

A colleague in the legal fraternity once described it to me this way: "Mediation operates under the shadow of the law." Mediation is not a court process, but that doesn't mean it takes place outside the legal framework. The law provides an important context for the discussions and agreements, particularly where children and their best interests are concerned.

Next week, I'll look more closely at how mediation fits into the South African legal framework, including the role of the courts and what this means for people considering family and divorce mediation.

Read more about Divorce Mediation

Contact me to discuss

 Back to Tuesday Talks