This blog article is adapted from De Jong, M (2009) “A pragmatic look at mediation as an alternative to divorce litigation”.
Divorce Mediation is a form of alternative dispute resolution for people who would like to avoid the expense and difficulty of a litigated divorce. For most couples divorce is a wasteland of emotional distress and upheaval. In litigated divorces only the lawyers come out the other side enriched. Mediation, on the other hand, offers the possibility of a peaceful and child centric transition out of the marriage.
What is mediation?
Mediation is the process where a neutral third party – the mediator – with no legal decision-making powers, helps the couple to negotiate the terms of their divorce. This includes the division of assets, spousal maintenance if necessary, as well as the parenting plan and maintenance agreement. Mediation by its very definition provides for a resolution that is mutually satisfactory.
This process allows the couple involved to decide on their own terms what is best for them and their family, instead of accepting a decision forced upon them by the courts.
Some features of divorce mediation
1. Mediation is impartial
The mediator or facilitator does not take sides and does not provide legal or psychological advice. However, the mediator may share factual legal information. The mediator can’t diagnose or provide therapy to the couple or their children. They can make referrals to other professionals if need be.
2. Mediation supports self-determination
Mediation allows partners to have greater control over the final divorce agreement. They are empowered to work out the disputes together with the help of the mediator. As a result they are more likely to accept the terms of the agreement than if it was imposed on them by the court.
3. Mediation is interdisciplinary
Divorce mediation is a collaboration between the legal system and social sciences. Lawyers, social workers and psychologists are specifically trained to offer mediation services. This means that the psychological wellbeing of the family is prioritised.
4. Mediation is informal and culturally-sensitive
It is a simple, user-friendly and understandable process that is not bogged down by complicated legal procedure and jargon. Diverse cultural and religious values and practices can be considered during the mediation process and included in the final agreement.
5. Mediation is flexible
Meetings between the divorcing partners and their mediator take place at a time and venue that is convenient for all involved. It also allows for the mediator to use a wide range of styles and strategies to encourage participation and cooperation.
6. Mediation is confidential
Anything which happens during the mediation process is kept confidential (barring disclosures of child abuse which must be reported to the authorities). The documents used in divorce mediation cannot be used in any other legal proceedings unless both parties agree.
7. Mediation is child-focused
Mediators must act in the best interests of the children, as laid out in the Children’s Act of 2005. Drawing up a parenting plan together means that parents cooperate with one another to ensure that the children have the best outcome. It also ensures that each parent is able to maintain a relationship with the children.