The Advantages Of Divorce Mediation Instead Of Litigation - SACAP
Applied Psychology

The Advantages of Divorce Mediation instead of Litigation for Children

Jul 20, 2021
The Advantages of Divorce Mediation instead of Litigation for Children

Divorce is not easy. Divorce with kids in the mix? Even more difficult. Not only has the person who started out as your nearest and dearest become your adversary, but now you need to continue to share a precious part of your life with them. While our instincts may lead us to try find a really good lawyer, a mediation approach could better help limit the negative knock-on effects for kids of divorcing parents.

What is a Divorce Mediation Process?

In a divorce mediation process where there are kids involved, the mediation is focused on the children and family-centred. As such a divorce is not seen to be the end of a family. Instead it is seen to be the beginning of a newly created family.

“Mediation focuses on viable solutions that seek to preserve relationships.”

With the help of a professional who facilitates effective communication, they negotiate a mutually agreeable solution in order to create this new family. The parties negotiate and agree upon short- and long-term solutions that take everyone in the family into consideration. This enhances co-operation and on-going co-parenting, which is more effective for divorces that involve children.

5 Focuses within a Mediation Process:

  1. Facilitating discussions between all parties
  2. Identifying issues
  3. Exploring compromises
  4. Generating a range of viable solutions
  5. Preservation of relationships

Something to remember is that when it comes to what this new family “should look” like and how it “should function”, the right way is the way that works for those in the family, not what it looks like from the outside.

The Legal Context of Mediation

Mediators work within the legal framework of the Divorce Act, the Maintenance Act and the Children’s Act.  They help both parties navigate the process without adding the stress that litigation does. When people are hurt and angry, as they inevitably are in a divorce, it can be difficult to imagine handling the situation with a minimum of conflict and destruction. With little to no emotional support, people are left to manage their ordeal fueled by their current negative emotions. These are also easily fanned by the win-lose nature of litigation.  By contrast, solution-focused mediation aims to defuse antagonism so that both parties’ concerns and fears, and their needs and wants, are fairly taken into consideration.  In the short term, people realise that they can play an active role in finding a solution, while for the longer term they have learnt vital conflict resolution and interpersonal skills.

“Mediation is a legally accepted alternative to litigation.”

Within the South African system, and as part of the government’s efforts to enhance access to justice, Court-Annexed Mediation Rules have been implemented in District and Regional Courts. The underlying purpose of implementing these laws has been to specifically promote restorative justice.  As long as no judgement has been delivered by the Presiding Officer, these rules allow the referral of disputes for mediation at any point in a civil proceeding.

The Benefit of Mediation

Mediation sets the tone for being heard. Within a mediation process, listening is very important. Both parents are given the opportunity to clarify what they currently want and need, as opposed to blaming and criticising things that happened in the past. As the process unfolds, a mediator provides support and encouragement. They also allow clients to become aware of if what they want is reasonable or not.

“Mediation is cheaper and quicker than litigation.”

3 Benefits of Mediation

  1. Research shows that people who have gone through mediation are more likely to keep to their divorce agreements, and less likely to turn back to the courts when they experience disagreements
  2. Mediation is considerably quicker and cheaper than litigation
  3. A Mediation process can help to limit the negative impact of divorce processes on children

Interested in learning more about counselling? SACAP offers a range of courses, including part-time and full-time as well as distance learning options. For more information, enquire now.

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