Mediation is NOT only for divorce! How does it work?
Updated: May 4
Mediation is to most people a relatively new and unknown concept. Almost foreign. The only understanding, as South Africans, that we really have is the CCMA and that is quite removed from what we as private mediators offer. Mediation, quite literally, can save your relationships and your mental health!
Mediators are people from a multitude of disciplines and backgrounds that assist other people with resolving conflict. Almost like a negotiating peacemaker. Al you need to do, is find a mediator with the right fit and expertise to assist you.
But mediation is also a structured profession currently, not just a couple of hippies that want to save the world. They have rules, codes of conduct and legislation to adhere to.
So, three main questions always pop up from potential new clients:
1. What issues can be mediated?
(I don’t think it will work with my ex…. you know, he/she is a narcissist!)
2. How does it work?
(Cause you know, my ex is a narcissist!)
3. How much does it cost?
(Cause my friend is a lawyer and he can do it for XYZ rand)
To mediate, or not to mediate
If you have a dispute, either factual, emotional, principled, or otherwise, with any other person/people, then it can be mediated.
The most important qualifier for a successful mediation, is that all parties (yes it could even be more than 2) need to have a desire to resolve the conflict. Even if they do not yet agree on how that should happen.
There are, in each discipline, certain circumstances that would make mediation not a desirable method. In family mediation, for instances, there is a reporting responsibility on the mediator when any claims are made between the party regarding harm to each other or the kids.
There are also certain issues that needs to be heard by a court to be able to change legislation that governs an issue or to create a new legal principle (these are rare, but stick out like a soar thumb when you do find them!)
Experienced mediators will also approach a mediation with a serious power imbalance different to other cases, but that is a discussion for another blog!
In short, almost all disputes can be mediated. Here are a few examples (not all!!) from family mediation, excluding just divorce:
· Maintenance disputes – how much should be paid by whom
· Maintenance arrears – negotiate a plan
· Parental arrangements – who sees the kids when and how over lock down
· Families living together – mediating a working solution between parents/in-laws and grown children
· Single fathers – finding a solution to see his kids during lock down
· Single mothers – finding help from dad with extra costs and responsibilities over lock down
· Adult siblings trying to resolve a deceased parent’s estate
· Two new blended families trying to find a workable schedule for all the children
Most mediation follows the same format:
(footnote: this is a simplification of a process that is very flexible and can be a lot more complicated)
The actual success of the process relies on a couple of basic principles that is fast turning into a massive field of study and there are a multitude of authors on the subject already, and the number is growing steadily.
1. Confidentiality and “Without prejudice”
Mediation is like Las Vegas. Everything done in Mediation, Stays in Mediation! No information, including summoning the mediator’s testimony, can be used in a court of law. This is the meaning of “without prejudice”.
This creates an environment of trust and encourages openness between parties.
2. Voluntary – it stays your choice
The choice to use the services of a mediator, is YOURS.
How the process flows, is YOUR choice.
The decisions that you and your co-parent or ex makes, is YOUR decisions.
The mediator can make suggestions, try and dissolve deadlocks, handle emotions and power imbalances, but they cannot make decisions on your behalf.
Couples that cannot reach an agreement, can, by the mediator, be referred somewhere else. Only arbitrators, social intervention personnel and courts can make decisions for you. Not mediators!
Mediators, by law, has certain obligations, that can have a significant effect on you, such as issuing of Certificates of non-attendance or failed mediation, or reporting a case to social services or to the courts.
The main decision points, however, stays in your hands! Use this opportunity, or the High Court might just make the decision for you!
3. Impartial – I’m on your children’s side!
A good mediator always protects the best interest of the children. The mediator is not your, or your co-parent or ex’s lawyer. They are an impartial third party. Every party are fully entitled to have their own legal counsel, financial advisors, and psychotherapists outside of the mediation process.
Mediators are experts at guiding conflict in the direction of a solution.
Mediators are governed by a code of conduct and are trained to constantly question their impartiality and biases, and if you at any stage feel that the mediator is losing objectivity, bring it to their attention immediately!
4. Advice from Mediators
Mediators can be Lawyers, Psychologists, Life Couches, Financial Advisors, Social Workers or from any other discipline imaginable. As such, they might be uniquely knowledgeable on your specific dispute and can be especially useful in providing information to both parties, in the mediation process about specific aspects.
This is part of the process, as long as this information is not given in private or to provide one party with a significant advantage, in other words not advice.
They all have an obligation to inform both of you on what the law says and what each party’s legal position is.
Family Mediators are also extensively trained in the psychology of children in development and separation issues. They can guide a couple towards the right decisions.
They can also refer parties to specialists (offer a choice of a few different specialists)
5. Third party wearing a different hat
A mediator can NOT be your lawyer one moment and then mediate you and your ex.
A mediator can NOT be your or your ex or your children’s therapist.
A mediator can be impartial third party if he or she is a spiritual leader to BOTH parties.
A mediator can NOT be a friend of colleague of you.
A mediator can NOT have significant financial interest with either you or your ex.
Just by offering the above few examples, you can see the ethical principle we try to offer. I have, especially found that legal advisors do not understand the ethics of mediation.
Third party = not involved.
6. Find solutions the courts can not
One of my favorite aspects of mediation is that it offers people the opportunity to find solutions unique to their family and circumstances, that a court would never do.
Should a matter find its way to a court, the judge or magistrate has, by law, only a few options as to how to end a dispute. In mediation, however, the sky is the limit.
I know of co-parents that have decided to allow a daddy to make lunch sandwiches for the kids each day while he was unemployment and cannot contribute as much financially.
A colleague of mine, had an co-parent (mechanic) repair and service his ex’s car instead of higher maintenance that he could not afford.
These are examples of responsible parents that find ways to help each other in unique ways that ultimately benefit their children and themselves.
Is it really cheaper?
I recently had a party tell me that HIS lawyer (Yippee for impartiality) can do the mediation between him and his ex for half the price that I charge. I struggled to answer this, because it means that neither the client, nor his legal council understand that mediation can only be done by impartial third parties. (as discussed above).
Secondly, I don’t think his ex would even consider trusting HIS lawyer (that has been significantly cold and nasty to her thus far) as a peacemaker that can be fair to all concerned.
The financial advantage of mediation is not in the comparison of fee structures, but in the actual use of that structure.
A legal advisor has an ethical duty to protect the interests of HIS client only! This, you would think would include resolving an issue as efficiently as possible for his client, but it does not always. It mostly means that he will try and negotiate the best possible outcome for his client, no matter the cost for the opposition, and irrespective of how long it takes to achieve (read in: wear down and outmaneuver the opposition).
Time is money! Mediation can speed up the process and by implication save BOTH parties a lot of money that could rather be spent on their own new lives and on benefiting their kids.
So, yes…. Most lawyers offer cheaper fees than a mediator for negotiations but be mindful before you buy that sales item!
If we can create a society that communicate with each other in stead of resolving our conflict with violence or in courts, we will provide our children with a societal structured geared towards happiness and acceptance. Mediation provides such an opportunity.
The choice, however, remains yours!
Mediate, don’t litigate!
For more information, please call
+27 11 675 1277