In mediation, an independent third party will work with both sides to try to reach a settlement agreement, and will advise the parties on the various scenarios they could face if the matter goes to court. A mediator acts as a neutral third party, and they usually have a legal and/or psychology background. A mediator does not decide the case and has no authority to make any decision or force any order onto the parties. The decision-making power remains with both spouses and the mediation process is without prejudice. The mediator will guide the parties in making reasonable decisions with regards to such things as the division of the joint estate and the maintenance of minor children. Once a settlement agreement has been drafted with the help of the mediator, the parties can request their respective attorneys to review it. If there are any aspects pertaining to children in the agreement, the Office of the Family Advocate should also peruse it and provide the court with an opinion on whether the arrangements contained in the agreement are in the best interests of the children. The agreement is then attached to the summons and served on the party that chooses to be the defendant. After expiry of the time period mentioned in the summons, the plaintiff will enrol the case on the court roll and finalise the divorce, incorporating the settlement agreement in the final divorce order. Mediation will work for you if: you and your partner agree that you can negotiate in a fair and equitable manner; children are involved and you would like to draft a parenting plan; you wish to save money in terms of a contested divorce; and/or you want your differences to be resolved as soon as possible. Mediation is a well-established form of dispute resolution and is frequently chosen by couples to resolve as many if not all of their disputes prior to obtaining their divorce. It is effective in terms of both time and money, and allows parties to be directly involved in reaching a settlement that is specifically tailored to their needs. However, mediation requires that both parties want to resolve their differences without resorting to litigation. Mediation can be entered into regardless of whether or not there are children involved. Every aspect of a divorce can be mediated, from the division of assets to the question of maintenance. Parties can agree to mediation before or after legal action has been instituted. Before entering into mediation, it is advisable for a couple to obtain legal advice so that they know their rights not only in terms of the antenuptial agreement, but also in terms of current legislation such as the Children’s Act. It is difficult to anticipate how many sessions will be required before mediation can be terminated, because it depends on the complexity of the divorce and the couple’s readiness to negotiate. Mediation is currently a voluntary option, but legislation to introduce compulsory mediation is in the pipeline. The role of the mediator is to manage the negotiations in an impartial manner. A couple may choose to appoint two co-mediators, such as a legal practitioner and a mental-health practitioner, who can each bring their own specific expertise to the mediation. Mediators do not offer advice, whether legal or psychological, and do not represent either party in any way. The mediator should also not have had any previous dealings with either party, whether professional or social. A neutral and skilled mediator aims to provide an environment where emotions frequently experienced by divorcing couples, such as anger, hurt, desperation and fear, can be contained by focusing on what needs to be resolved rather than exploring the reasons for the break-up of the marriage. It is sometimes appropriate for a couple contemplating divorce or separation to seek psychological or therapeutic assistance to deal with the psychological aspects of divorce or separation while at the same time entering into mediation. There are some instances where mediation is unlikely to be effective, such as where there is a significant power imbalance between the parties, where there are serious allegations of substance abuse or where mental health is being called into question. In the event that mediation fails, information provided to the mediator during mediation may not be disclosed later at a trial. Because mediation is a voluntary process, it can be terminated at any stage by either party or by the mediator if they are of the opinion that the process is no longer productive or serving their needs.
Posted on: Sun, 16 Feb 2014 14:31:15 +0000