Divorce mediation is an alternate process to litigation in preparing couples/partners for separation and/or divorce.
Divorcing couples have to make decisions on matters regarding:
- Division of Assets
Mediation is essentially a voluntarily negotiation between the couple facilitated by a neutral 3rd party (a mediator)
The role of the mediator is to encourage discussion and greater understanding; and to provide the couple with information on legal and parenting issues to enable them to make informed decisions.
The mediators help people in conflict to negotiate more effectively with the aim at reaching agreeable decisions.
These decisions are recorded in a Memorandum of Understanding. The Memorandum is not legally binding until it is converted into an Agreement of Settlement by an attorney or through the Family Court.
What are the advantages of mediation?
- The couple formulates the agreement themselves and are therefore more committed to it.
- An amicable and co-operative climate is created rather than a conflictual one and this benefits all family members.
- The couple saves time and money because they negotiate directly with one another rather than using attorneys to represent them on all issues.
- When parents can set aside their differences, they are able to focus on the best interests of their children.
- A Memorandum of Understanding is reached in as many as 80% of mediated cases.
Who is the mediator?
The mediator has completed a mediation training course accredited by the South African Association of Mediators (S.A.A.M.). The mediator provides specialised information on the emotional impact of divorce on the couple and their children and assists in working out the fairest financial settlement.
Is Mediation Confidential?
The mediator is bound by professional ethics to provide an impartial, confidential service. Mediators treat all discussions as strictly confidential except where they believe someone’s life or welfare may be in danger. If this becomes apparent mediators will discuss any necessary action to be taken with the couple.
Neither party may use information discussed or disclosed in mediation during court proceedings unless this intent has been recorded in the Memorandum of Understanding, which has been converted into an Agreement of Settlement.
The legal system
Mediation helps the couple to prepare for the legal process by facilitating their mutual co-operation in detailing their needs and those of their children.
Attorneys and legal clinics can provide advice about legal rights, obligations and entitlements before, during and after the mediation process. This ensures that the couple has enough information to make informed decisions.
Once the couple has completed the process and the Memorandum of Understanding has been drafted, it is then necessary for them to go through judicial procedures. The couple can approach an attorney, the Family Court or the High Court to obtain their divorce.
What does mediation entail?
- The couple attends sessions together.
- Each session is an hour and a half.
- The mediation process can take from two to six sessions.
- The number of sessions varies from couple to couple and depends on the number of issues and their level of complexity.
Who should attend?
- Couples who have made the decision to divorce.
- Couples who are divorced but need to re-negotiate issues.
- Couples who have lived together and/or have children together.
- Family members who are in conflict, for example a parent and a child in a traditional family or a step-family context.
What is the parenting plan?
“Children Are For Keeps” is a parenting plan which provides a broad framework in which decisions can be made about children’s names, living arrangements, education, religion, family relationships, financial support, health care and emotional wellbeing.
“Children Are For Keeps” is about helping parents resolve conflict through communication, consultation and sharing of information.
After discussing the parenting plan, the mediators record all joint decisions reached by parents in the Memorandum of Understanding.
“Children Are For Keeps” is useful for all families with children. It is particularly beneficial for couples who are separating, divorcing, or for divorced couples who wish to specify the future care and development of their children.