By Adv. Veerash Srikison, family law and mediation expert.
Contrary to the general belief, mediation does not take away access to justice, it is very much part of the South African legal system.
Too often mediators hear the words “mediation is not for me so why should I try it?” This potential client is usually the other half of a couple who is in the process of a divorce or separation and very reluctant to use mediation for fear that it will limit their legal “power”. In mediation, you are given the power to voice your thoughts and opinions while a skilled mediator gives you the legal information necessary for your circumstances. You then have the power to deliberate and make realistic decisions that will form their agreement or order, while being legally sound.
“In mediation, you are given the power to voice your thoughts and opinions while a skilled mediator gives you the legal information necessary for your circumstances.”
A brief outline of the mediation process:
- The mediator must be impartial and neutral. The mediator must not represent one client or have had a relationship with a client in any way. During mediation, they must not provide personal anecdotes of how they experienced similar issues and how they went about resolving it. The mediator must not agree with the one client and then attempt to get the other client to agree also. The mediator must not bully, intimidate, give in to the one client or make decisions for the clients. The role of the mediator is to facilitate the discussions and provide a platform for the clients to be heard fairly. Be aware of a mediator who forces you to stick to a generic agreement by saying that it worked for other clients and therefore should work for you.
- The clients make the decisions that are suitable for their particular circumstances and should not rely on attorneys or judicial officers to do so. For instance, if a contact schedule is required to determine when and how they will each spend time with their children before, during and after a divorce, in mediation they will weigh up what is suitable. Once all options have been tested they will choose the best-suited one at the time and incorporate it into their agreement. This will ensure the children have the least amount of disruption while moving between homes, since the clients know first-hand their own schedules and that of their children. This type of decision-making in mediation saves the time and costs involved in legal battles or separate appointment times with attorneys.
- The mediation process is flexible. The parties determine the pace of the process. The clients can meet at a time and date suitable for themselves and the mediator. The work to reach resolution starts from session one.
- Mediation focuses on the future. Whether the couple decides to use mediation to end their relationship or mediation allows them to understand the obstacles holding them back from continuing the relationship, very little time is spent dwelling on the past when mediating.
- Where necessary, mediation allows for the input of other professionals to provide feedback that can be discussed within the sessions. For instance, a financial advisor can provide feedback on the value of the assets the couple would like to distribute and any tax implications they may encounter, or a psychologist can provide feedback on the views of the children or if they need additional support throughout the separation or divorce proceedings. However, these feedback reports can be done concurrently with the mediation sessions to prevent any delays. Mediation does not force an agreement; the parties decide whether they want to reach an agreement or not.
- Communication between parties is direct. There is no delay in the discussion or room for misunderstanding. The method of communication will not be to apportion blame or guilt, but rather to be constructive so that solutions can be put forward that promote the well-being of everyone.
If used appropriately, mediation provides the reassurance that you are both moving in the right direction and, especially where children are involved, the direction you choose promotes a better future relationship that is not destructive.
This submission is for information only and not considered legal advice.