Is a voluntary, confidential and without prejudice negotiation between a couple, a family or parties to a family related dispute facilitated by a mutually acceptable neutral mediator. The mediator is bound by ethics to treat all discussions as strictly confidential, except where they believe someone’s life or welfare may be in danger. If such an issue comes to light during mediation, the mediator will discuss any necessary action to be taken with the parties.
Family law mediation is an alternate process to litigation preparing partners and couples for separation and/or divorce. Mediation can also happen between parties who are divorced and who need to re-negotiate issues, family members who are in conflict including a traditional or step-family context.
Parties usually make decisions about custody, access, maintenance and division of assets. The role of the mediator is to assist the parties in discussions and in reaching greater understanding on the issues. The role of the mediator is to provide the parties with information on legal and parenting issues to enable them to make informed decisions. The parties are encouraged to make use of the services of attorneys and legal clinics who can provide advice about legal rights, obligations and entitlements before, during and after the mediation process, ensuring that the parties have adequate information to make informed decisions.
Mediation aims to help the parties to a conflict to negotiate more effectively in order that they reach decisions that are acceptable to them both. The decisions are recorded in a Memorandum of Understanding that is not legally binding until it is converted into an Agreement of Settlement by an attorney or through the Family Court. The parties are encouraged to take the Memorandum of Understanding to an attorney to ensure that their legal rights have been protected. It is also necessary for the parties to go through the judicial procedures. To this end they can approach an attorney, the Family Court or the High Court.
Benefits of mediating family law disputes
- The parties are more likely to be committed to adhere to the terms if they formulate the agreement
- It is an amicable and co-operative negotiation rather than a conflictual process. This is beneficial to all family members and encourages good future relationships
- Cost and time effective when compared to litigation, as the parties negotiate directly with one another rather than using legal representatives to represent them on all issues
- It is in the best interests of the children for parents to set aside their differences and to focus on the children’s best interests
- A Memorandum of Understanding is agreed on in most cases
- Mediation is confidential. Litigation is in the public domain
- Mediation is without prejudice and the parties can revert to their positions before mediation if no agreement is reached
What is a parenting plan?
It is a document that provides a framework in which decisions can be made between the parties regarding their children, including their names, living arrangements, education, religion, family relationships, financial support, health care and emotional wellbeing. The aim of the parent plan is to encourage parents to resolve conflict through communication, consultation and sharing of information.
How family law mediation works:
- It is a voluntary process, both parties must be willing to mediate
- The parties both attend the mediation
- Each session is an hour and a half
- The process usually takes from one to six sessions – this depends on the parties and the complexity of the matter. These are charged for at an hourly rate
- A Memorandum of Understanding is drawn up. It is converted into a legally binding document and made a court order if applicable. A set fee is charged for the Memorandum of Understanding
- Child interviews are held where applicable
I am accredited with SAAM (The South African Association of Mediators) and subscribe to their code of ethics, which is available on their website. I volunteer at FAMASA.