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Pathway to agreement mediation services

“In war whichever side may call itself the victor, there are no winners, but all are losers.” -Neville Chamberlain

Adversarial system
The adversarial system of justice (often seen in films) where both parties do battle with an own array of lawyers, experts and family members in support is not user friendly. It seldom allows the parties to take charge of their own destiny. But mediation can lead to a different outcome.

What is mediation?
Mediation is a co-operative problem-solving process which can help couples to reach their own agreements. The mediator is only a facilitator, and the parties discuss matters in a controlled environment directly with each other.

The mediator may help you to:
-decide and clarify the areas that are in dispute;
-explore each person’s needs and interests;
-explore possible solutions, taking one problem at a time;
-select the most suitable solution or suggest alternatives;
-assist you to draw up a memorandum of understanding.

Mediators do not:
-give legal advice or act as lawyers;
-offer counseling or therapy as part of the process;
-make your decision for your; or
-take sides with either party.

Advantage of mediation
Sorting matters out between yourselves and coming to an agreement offer a number of significant advantages over litigation:
-You may greatly reduce the financial and emotional costs of a legal battle.
-You make and take responsibility for your own decisions.
-Your continuing relationship as parents is likely to work better.
-You decide on the place and time frame to settle your disagreements.
-You may improve communication with your former partner and be better able to resolve disputes in the future.

Who should attempt mediation?
Mediation does not suit every family or every dispute and some issues like family violence or abuse simply cannot be mediated. The following factors are some which would make it difficult to mediate:
-reduced abilities due to alcohol abuse, psychiatric illness or mental instability;
-power imbalance or continuing dominance by one partner;
-overwhelming emotions concerning the divorce;
-a history of broken agreements or a total lack of trust;
-the use of mediation simply as a delaying tactic; and
-violent or threatening behaviour.

In view of our adversarial systems of justice it is difficult for lawyers to act as mediators. The problem is that they act for one or the other party, whereas a mediator should be a facilitator enabling parties to come to a agreement. There are trained mediators. For ethical reasons I cannot mention any. If a reader should be interested, he or she should contact the South African Association of Mediators.

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