Written by Dr Angela du Plessis. Angela is an accredited and experienced mediator in divorce and labour matters. She has an MSc from Oxford University and a PhD from Wits in Social Work.
An insightful journalist once wrote: “Divorce is a marriage where the bonds of love are
replaced with bonds of hate”. Does it have to be this way? Especially if there are
children involved – how do couples face the dreadful process of a divorce such that
their children are not overwhelmed by their parents’ conflict? A wonderful psychologist
called Seligman has said that children who witness a high level of conflict between their
parents can have long term issues such as depression which can last well into their
adulthood. How can couples facing the traumatic unpicking of a marriage and family life
without such lasting effects?
Divorce is devastating, putting all of the family on an uncomfortable and frightening
rollercoaster as they navigate their way through a difficult and largely unknown journey.
Most divorcing couples opt to go the litigation route which, on the one hand can be
helpful, but on the other hand, may not. Obviously each lawyer wants the best deal for
their client but the couple’s relationship may be at risk as their lawyers haggle over the
division of assets, child care arrangements and the introduction of new partners.
At its most basic level, a divorce demands a series of conversations about a broad
range of topics that affect the lives of all involved. Because of the emotional nature of
the conversations these can be difficult to handle. Between most couples divorcing
there is a complex set of feelings that underlie even the most apparently neutral
decisions. These feelings include anger, sadness, guilt, shame, blaming the other
person, and the like. Divorce can induce a maelstrom of emotions that may hinder a set
of negotiations. A contested divorce, where couples cannot agree on financial outcomes
or perhaps where the children should live, may take a long time – indeed some drag on
for years, and the cost of lawyers’ fees compound already frightening money troubles.
Some couples choose to communicate only through their legal representatives, which
does little to build up co-parenting efforts.
It is a well-known fact that many couples cannot afford to get divorced. Running two
homes after the separation can place enormous financial stress on the family.
Arguments around maintenance and school fees can be extremely fractious.
So, is there another way approach divorce?
One other alternative to expensive litigation is to embark on a mediation process.
Mediation represents what is referred to as alternative dispute resolution, and has a
special relevance for couples with children. The fact is that the parents are “wedded” to
each other over the long term in that they remain co-parents forever. Mediation offers
an option to face the tricky process of divorce in a way that helps the couple to maintain
their relationship with the minimum of conflict between them.
Family Life Centre (FLC) is an NGO that has been involved in family matters since
around 1949 in South Africa. During the early 1990’s they added Divorce Mediation to
their wide bouquet of interventions. Many couples have opted for this process and found
it a much less threatening way to deal with divorce than litigation.
How does mediation work? The FLC uses a co-mediation model where a legal
practitioner and a mental health practitioner, such as a social worker or psychologist,
together assist the couple through the series of negotiations required to come to a
Memorandum of Agreement that forms the basis of the of the divorce settlement. Of
course this implies that couples are willing to sit in the same room as each other and
have neutral third parties facilitate their conversations. This is not always easy, but the
mediators are there to help the parties find resolutions to the unfolding decisions the
couple have to make. The role of the mediators is to guide parties on the way forward
as opposed to giving legal advice. Depending on the ages of the children, the mediators
can share how other couples have dealt with arrangements for the children in a way that
judges and the Family Advocate would find acceptable. A great deal of the discussions
focus on financial concerns and finding a way to approach the children’s’ needs that is
in their best interests. Child interviews are held with children from 4 years upwards. The
Children’s Act requires that the voices and wishes of the children are heard. Specially
trained professionals undertake these interviews to share with the children the
arrangements that their parents have made on their behalf and obtain their thoughts
and feelings on these decisions.
Mediation is a good faith bargaining forum. This means that it is accepted that parties
are there in good faith to make decisions that are fair and realistic to the newly
constituted family. Unfortunately, addiction as a dynamic within the family does not lend
itself to the process of mediation. This can be addiction to alcohol, drugs or gambling.
Normally such cases do end up in litigation.
The average mediation process, depending of course on the level of complexity of
unbundling the family, can be relatively quick, somewhere between 3 – 6 one and a half
hour sessions. The FLC does charge for the sessions but the fees are relatively low as
the mediators work in their voluntary capacity. Fees may be reduced if the financial
circumstances of the family are precarious. The “magic” of mediation is that the couple
decide the outcome of the process. The mediators look after the process.
Why not consider mediation as an alternative to protracted litigation?
In addition to mediation, the FLC also offers Legal Consultation where one or both
parties receive objective advice on the divorce process itself.
Couples choosing to divorce through mediation experience far less of a trauma than
litigation and is also much quicker and less adversarial. While divorcing couples may
not come out friends, they at least leave having had the best shot at finding solutions to
the conundrums thrown up by splitting a family and some satisfaction that they were the
architects of the outcome.
Whether it is for yourself or family and friends, please consider mediation as an option.