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Divorce mediation: a compelling alternative to litigation

Divorce mediation is a form of Alternative Dispute Resolution aimed at resolving disputes pre, during or post separation or divorce. Divorce mediation is a process that empowers participants to reach fair, practical and sustainable agreements regarding parenting plans, maintenance and division of assets and liabilities for example; which are suited to their family’s unique circumstances.

Separation and divorce are among the most painful and disruptive events that individuals and families experience. They are highly emotive processes which involve making decisions and reaching agreements on issues which have a direct, long-term impact on family members. Making decisions about your children’s future or how to divide assets fairly can be extremely challenging under these circumstances. Objectivity and problem-solving are often overridden by emotion. As a result, couples resort to litigation which can be expensive, emotionally draining, time consuming and have a long-lasting negative impact on relationships.

A retired associate of the Supreme Court of Justice of the United States Sandra Day O’ Conner, says “The courts of this country should not be the places where resolution of disputes begin. They should be the places where the disputes end after the alternative methods of resolving disputes have been considered and tried”

As an accredited Divorce Mediator who has assisted many couples in South Africa to reach agreements on parenting plans, maintenance and the division of assets and liabilities, I believe firmly that the same is true in the South African context. In my experience, a holistic approach to managing the separation or divorce process is ideal and may include the involvement of mediators, attorneys, psychologists, social workers and in some instances financial advisors – depending on the families unique circumstances.

For example, the psychologist or social worker provides counselling and various other services to families working through the divorce process. They would also conduct a “voice of the child interview”, the outcome of which is fed back into the mediation process as input to the development of a parenting plan.

On the other hand, attorneys have an important role to play to formalise provisional agreements reached between the parties facilitated by the mediator, among other things.

In my experience however, apart from where there are contextual factors such as substance abuse, domestic violence or major power imbalances in the relationship, mediation should be used rather than litigation to solve disagreements as it saves money and time, improves communication and the chances of successful co-parenting, increases awareness, empowerment and control, and reduces the emotional turmoil and impact on children

The reason for this is that Divorce mediation is an empowering process which acknowledges that the participants are best placed to make decisions about their family’s future. After all, who else is better placed to construct a families future than the family itself? Empowerment is synonymous with taking responsibility and this is what the mediation process encourages and enables parties to do. Consequently the responsibility to resolve conflict and reach fair and practical solutions rests with the participants, and the process is only facilitated by the mediator.

The mediation process provides a safe and structured time and space within which parties can discuss what is most important for their children and indeed, for each other. Mediation is not about who argues their case more convincingly. This undermines the process. Rather, parties adopt a mindset of appreciative inquiry where the focus shifts from attributing blame and trying to “win at all costs to understanding priorities and achieving compromises. By doing this it is possible to arrive at innovative agreements that would not have been possible otherwise.

As Nelson Mandela so eloquently said “One effect of sustained conflict is to narrow our vision of what is possible. Time and time again, conflicts are resolved through shifts that were unimaginable at the start”.

If you would like to find out more about Divorce Mediation you can visit www.amanimediation.co.za or call Melissa on 072 590 9517 or email melissa@amanimediation.co.za Amani Mediation are based in Rivonia, Johannesburg and specialise in Family and Divorce Mediation. We employ a holistic approach to Divorce Mediation, working closely with a small network of psychologists, social workers and attorneys who share our philosophy.

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