Advantages of divorce mediation
Divorce and/or family mediation has numerous advantages for divorcing couples, children affected by divorce and the judicial system in general:
a) It is a much less stressful and emotional experience than the traditional divorce process.
Working together with a skilled mediator in a negotiation process results in much less animosity and ill will than the protracted confrontation that often occurs between adversarial lawyers and their clients. The shortened time duration of the process, as well as the considerably lower cost of mediation, also contributes to a lower level of emotional stress.
b) Divorce mediation is much less expensive and faster than the traditional divorce process.
The divorcing couples pays one mediator instead of two attorneys. Also, having both parties together during mediation sessions dramatically shortens the process and the billable time of the mediator. The cost of divorce mediation is on average 50% lower than the cost of traditional divorce litigation.
c) Divorce mediation is better for the children.
The divorcing parents remain in charge of their children’s interests and needs, and are able to construct a cooperative parenting plan without turning the children’s futures over to judges and lawyers.
d) Divorce mediation results in a lower rate of re-litigation.
Mediated settlements are more comprehensive and cooperative in nature, producing a much higher rate of compliance by both parties, and a lower rate of expensive re-litigation. After all, the goal in mediation is to help the spouses come to an agreement that is suitable for their needs and lives.
e) Divorce mediation teaches parties how to deal with conflict in a non-aggressive way and gives them the opportunity to express their feelings of bitterness, disappointment and anger.
It allows parties to deal with those matters they feel are important, but which the law may consider frivolous or unenforceable. Therefore, unlike in litigation, the mediation process is not restricted solely to legal issues, and allows parties to deal with all facets of divorce.
f) Divorce mediation can be cost effective
Although mediation may be more expensive than an uncontested divorce, it is definitely much cheaper than contested divorce litigation. In South Africa, the going hourly rate for a mediation session is anything between R500 and R2 000, depending on who the mediator is. The mediation process usually runs for a period of four to six sessions. Six sessions of mediation may therefore cost parties up to R12 000. In comparison, a very straightforward, unopposed divorce costs about R4 500 today and the costs of an opposed divorce may run into the hundreds of thousands of rands. Mediation can save divorcing parties a considerable amount of money, but can also be more expensive than an uncontested divorce, where the parties agree amongst themselves on the divorce process.
g) Advantages for children affected by divorce
The stress and animosity often generated during litigation can be emotionally damaging not only for the couple, but for the children as well. Mediation is a more empowering choice for children because:
Separating parents maintain control of their children’s needs, and can develop a comprehensive parenting plan.
h) Mediation is more private than a traditional divorce.
Mediation enables those who know the children best, namely the parents, and not a third party or institution, to make decisions about their welfare. Section 28(2) of the Constitution of the Republic of South Africa places an obligation on, amongst others, on the mediator to see to it that divorcing parties put the interests of their children first in all negotiations between them. The chances of the interests of children being protected in the mediation process are therefore excellent. Research has shown that upon divorce, mediated settlement agreements provide far more advantageous provisions regarding the interests of children than agreements or orders made in terms of the adversarial system. Mediation emphasises, that parenthood is not terminated on divorce, but that both parents retain their roles and responsibilities in a restructured family. In mediated divorce matters there are thus a greater chance of the non-custodial parent remaining involved in his or her children’s upbringing. The involvement of both parents creates a positive atmosphere for children and helps them to adapt to their new circumstances upon the divorce of their parents.
DISADVANTAGES OF DIVORCE MEDIATION
Divorce mediation is obviously not without problems. For instance, because a divorce mediator is seen as a neutral third party, he obviously is in no position to advise a party personally. The most important criticisms of divorce mediation are:
a) The shortcomings of the mediator
Mediators themselves can have a negative impact on the mediation process, especially where they don’t have a legal background and the disputes at large include both child and legal matters. This creates issues where two mediators need to mediate a dispute, which have a bearing on the costs. Thus, if individuals are interested only in mediating a custody or visitation problem, they might select a mediator who is skilled as a psychologist or social worker. If parties have a problem resolving spousal maintenance or child support, they might select a mediator who has experience as an attorney, accountant or financial planner. Finding a mediator with all the necessary skills can be difficult. A mediator’s professional training may further influence his or her neutrality or impartiality. Since mediators from different professional backgrounds are presently involved in mediation, this necessarily gives rise to the following problems for example mediators who are trained in the behavioural or social sciences tend to play a more active role in facilitating the parties’ agreements on the best interests of the children.
b) Divorce mediation is inappropriate in cases of family violence
Divorce mediation is totally inappropriate in cases of family violence. Women, who are usually the victims of this violence, has a physiological disadvantage and powerless against a husband in the mediation process and will be unable to negotiate fair settlement agreements for themselves. Abusers may also avoid criminal-law sanctions for their actions if their divorce is not dealt with by the courts, but settled privately in the mediation process where all disclosures of the parties are confidential.
c) Mediators cannot always be impartial and neutral
Mediators cannot always be impartial and neutral, and every mediator has his or her own perceptions of what is fair and right, linked to his or her cultural background, education and training. A mediator’s cultural background may give rise to problems if it is not the same as that of the parties in the mediation process. Where mediators are for instance part of a dominant cultural group they may try to impose their values and principles on the parties.
Mediation is an important tool for dealing with divorce and family disputes. However, having said that, there are instances where divorce mediation will simply burden the parties with extra bills and costs, especially in the uncontested divorce sphere and it might still be cheaper in circumstances to use an online do-it-yourself divorce service, after all, the best way still would be if the spouses can settle their issues between themselves. In contested matters however, mediation might be more convenient and less emotionally draining and will in fact be cheaper than litigation.