CONSIDER A MEDIATOR BEFORE GETTING A LAWYER FOR YOUR DIVORCE

Through mediation, a child was able to reconnect with is his father. Here’s why mediation will work better than a lawyer.

Winston Churchill said, “Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.”

Divorce is often a time when a person finally gets the courage to stand up and speak, yet is rarely a time when listening is happening. Speaking tends to be more in the form of demands and insults due to hurt and anger. Strangely enough, divorce is a time when the parties really do need to talk, and more importantly listen, in order to successfully get through the divorce process and to be effective co-parents for the future.

Unfortunately the litigation process of divorce does not encourage listening. Being heard, truly heard, creates an atmosphere of understanding and empathy. This is the premise of meditation, and facilitates robust and mature discussion.

These discussions, whilst effectively listening to the other person’s fears and needs, can lead to an agreement that is workable for both people. Due to the agreement being creatively shaped by both parties, there is an investment and an ownership over the process that is rarely experienced through litigation. This goes a long way to creating success in future problem resolutions with regards to parenting and maintenance.

Mediation is also extremely cost effective. Not only are mediator fees half of that of legal fees, but both parties are paying for one mediator rather than a lawyer each. Mediation tends to be far quicker, with agreements often reached within 3 to 6 mediation sessions.

Months of discovery and legal fees are thus not necessary. However, mediation can only be done where both parties agree to mediate, and agree to be open and truthful throughout the process. It would make sense that any situation should attempt mediation before going the legal route, in the event that it works.

I feel that even if a mediation session is unsuccessful in getting an agreement, there is some success within the process due to parties being able to communicate to one another in a facilitated environment. It is difficult to quantify, but much can be achieved in these conversations.

I do not feel that there are any situations that would not be able to be mediated. However, one is mediating people and not situations. It merely takes one unreasonable or indecisive person to make mediation unsuccessful. This can come from a number of reasons. Often these people can have a personality disorder which then makes it very difficult to reason with them. A very indecisive person can be playing into the power imbalance that the mediator is working hard to alleviate. They may also be unduly influenced by outside forces. I have mediated a divorce where every agreement was reversed within a day or two. I could only conclude that others were influencing the person, despite my warnings to the contrary.

It is vital to get professional, legal and financial advice during the process, yet being swayed by well-meaning family or friends who have their own agenda can stall the process unnecessarily. One needs to empower oneself through the process with the help of the correct professionals.

Going to court and having a stranger decide on the fate of your children is one of the most disempowering things to experience. Thankfully court annexed mediations are on the rise, with the view to empowering parents to work through their issues and come to an agreement on what is in the child’s best interest. Legally the decision the court would make would be correct, yet it often does little to alleviate the anger that the parents have towards one another, or the fear of losing control over the child.

A child was able to re-establish his relationship with his father after eight years following a successful mediation in Cape Town Children’s Court. The mother had kept the child away from the father once the child had started school. This was due to her wish that the child had a routine during the school years, and her desire for homework to be done correctly. The mother had gotten incorrect information and thought that she was within her rights to do that. Her thoughts were that routine, homework and specially prepared lunch boxes due to his specific diet were more in the child’s best interests than his relationship with his father.

The mediation revolved around both parent’s wishes for the child, with the father alleviating the mothers’ fears that routine, homework and diet would not be considered. Once these were discussed, both parents agreed easily to a parenting plan by considering the best interests of the child first, and by acknowledging each other’s positive influence in the child’s life. In a sense this could have been a simple conversation between the parents eight years previously. Yet due to outside influences, incorrect information, fear and two people who had no idea how to communicate effectively, eight years of a father-son relationship were lost. The anger and hurt that ensued meant that it took eight years before they were attended to in court.

Author and human rights activist, Brynant. H. McGill says that “one of the most sincere forms of respect is actually listening to what another has to say.” When going through a divorce, one wants to be heard. It goes then without saying that both sides want to be heard, and so the best way would be to listen.

By respecting the other side, one would generally get their respect too. Letters of demand and threats of legal action do not endear respect, or healing. A consensual and informed agreement, facilitated by a mediator, results in new alternatives being sought and practical compromises being found. This can really only be done through proper communication. A mediators main job therefore is to facilitate discussion through good communication methods, out of which an agreement can be reached.