1. Mediation

Co-parenting starts the day the decision is made to separate has been made. Even the most amicable separations need a plan for future co-parenting. Putting your children’s best interests first, no matter how much you may dislike their other parent, is the key to co-parenting.

The first thing you must do is decide if you and the other parent are able to talk about co-parenting after the separation. If you feel you can, that is great. The strongest agreements will come from the two of you. However, if you cannot talk about co-parenting, don’t!! Let professionals such a mediators and therapists, assist both of you with co-parenting discussions.

Circumstances change, people move, children grow and develop and what once worked may not be working now, if this is the case a mediator will be able to help work through the issues and draft a parenting plan or assist in reaching agreements relating to issues such as primary residence, visitation rights, contact, maintenance and other matters.

Mediation is a process for handling conflict in which the parties voluntarily meet with a trained, impartial mediator to resolve their dispute.

Mediation is a process whereto the parties’ voluntary consent or it is a mechanism which can be enforced by the Children’s Court through an Order of Court after a Form 2 Application has been finalised.


2. The Mediation Process

Step 1: Agree to mediate.

In the first session with an accredited mediator a contract between the parties is developed, this guides the mediation relationship. An agenda for the mediation is set, and the fee structure is agreed to.

Step 2: Identification of issues and setting of the agenda

The aim of these sessions is to obtain background information, identify issues, conflicts and to develop an agenda for the mediation.

The mediator helps develop an agenda for each meeting, and ensures that the parties stick to it and communicate clearly and effectively with one another. Agenda items include any issues relating to the child such as care, contact and residence, maintenance, assets, debts, and any other concerns typical of separation.

 Step 3: Negotiation 

The parties meet with the mediator for a series of joint sessions.

The focus in these sessions is on:

  • Creating options and alternatives
  • Negotiation and decision making
  • Developing effective communication strategies
  • Developing conflict resolution strategies
  • Finding solutions to specific issues
  • Drawing up a Parenting Plan
  • Division of assets and property
  • Drawing up a Financial Plan (including child maintenance)

(Sessions of 90 minutes depending on the complexity of the issues and the willingness of both parties to negotiate)

Step 4: Review

The parties review the agreements, typically the Parenting Plan, Financial Agreement and Settlement Agreement.   Once signed by the parties, an agreement is viewed by the court as a legally-binding document. Therefore, the parties are advised they may wish to have the agreement reviewed by legal counsel before signing it.

Step 5: Implementation

The agreements are made an order of the court and/or of the Family Advocates Office.

 Step 6: Follow Up

The parties may agree to meet with the mediator for follow up, adjustment or revision, initially 3 monthly, and then annually – or as the need arises

3 . Mediation can benefit you in the following ways:

  1. Reduces the Emotional Toll of the effects of separation or divorce.

Even in the most amicable separations the emotional costs are high.  When approached as a legal competition, animosity is ripe to grow between parties and in children. Mediation can mitigate that animosity.

  1. Reduces the Financial Costs.

Disputes can arise any time after separation due to changes in circumstances.  To resolve these disputes in courts with the attorneys costs involved may become a very expensive and time consuming exercise which in most cases is not in the best interest of the child and to the emotional or financial benefit of either party.

  1. Improves Communication between Ex-spouses.

 The end of a marriage doesn’t signal the end of communication between the parties. If children are involved, parents need to be able to communicate and work together for the long haul. The mediation process creates a framework for future co-parenting in which parties learn to communicate clearly and non-competitively for the benefit of their kids.

  1. Reduces the Length of Court Proceedings.

The average length of litigation proceedings in South Africa is about 18 months. The average length of a mediated process is closer to 90 days. Many mediators can help parties develop their own agreements in just a few short sessions.


4. Preparing for Mediation:

Bring to and/or be prepared to discuss at the mediation all information relevant to resolving the dispute and to be included in the agreement. This might include contracts/existing agreements, leases, data on income and expenses, etc.

The success of mediation depends on the positive participation of both parties to act in the best interest of their child or children.  Should you wish to consider cost effective and positive alternatives to litigation, mediation might be the solution to the issues and challenges you may currently be experiencing.

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