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To begin with, it is important to explain that mediation is not the same as arbitration. A mediator does not, in any way, make any findings that are binding upon the parties.
The parties themselves negotiate their divorce and/or custody dispute. They own the process. However, if it were left to the parties themselves, unassisted, to negotiate their issues, more often than not they would fail dismally. The very reasons that cause the breakdown in their relationship and/or marriage, would intrude upon their ability to negotiate their disputes. It is in this context that the mediator plays his and/or her role. The role of the mediator is to facilitate the negotiation process between the parties. In doing so, the mediator brings to bear a number of important skills.
| 1 | THE SKILLS OF THE MEDIATOR |
| 1.1 | Skill One - Screening couples to access whether Mediation is Appropriate for their Dispute There are times when mediation would be wholly inappropriate and it could, G-d forbid, actually facilitate and/or perpetuate an abusive process. This would be the case in circumstances of imbalances of power created as a result of abuse, whether it be physical, financial and/or emotional abuse. Mediators have to be trained to pick up the warning signs of abuse. If there is any indication of an inequality in the negotiating powers of the parties, the mediator must, if he/she cannot level the playing field, insist that the parties seek lawyers and/or take the matter for a judicial decision. |
| 1.2 | There is a wonderful story of a hunter who caught a bear in his gunsights. The bear said to the hunter that he wished to resolve his issues with the hunter in a sensible enlightened way using the latest skills of mediation. The bear suggested to the hunter that he stop being so primitive in his attitude, put down his gun, sit down next to him and he, the bear, will enlighten him about how disputes are resolved in today's day and age. The hunter agreed, sat down with the bear and the bear explained that the hunter was looking for a bearskin to cover him and he, the bear, was looking for a meal. Thereafter, the bear ate the hunter and so, the hunter had a bearskin around him and the bear had his meal. This analogy of the bear absolutely encapsulates the dangers and pitfalls of mediation in inappropriate circumstances. The scope for abuse of the process is enormous. Other examples of where mediation are inappropriate, are: |
| (a) | Circumstances where the levels of conflict and the wounds between the parties are so intense, that their capacity for rational interaction with each other is diminished and/or absent The mediator in such circumstances should refer the couple to a context where they will be more contained. This might be a referral to attorneys to negotiate on behalf of the couple and/or psychotherapy, etc. The fact that a couple, at one point in time, are not ready for mediation, does not preclude the possibility of mediation at a later stage. Mediation can and often does occur concurrently with the litiigation process. Very often, mediation is effective at the Pre-Trial Conference stage. In fact, Rule 37 of the High Court rules specifically requires parties to record in their Minute of the Pre-Trial Conference whether or not the parties consider it appropriate in the case in question to have their dispute resolved by mediation and/or arbitration. |
| (b) | Circumstances where one party is not in good faith, or where information is being withheld and/or where cheating is occurring. Mediation, in such circumstances, would not be appropriate and a mediator might well find himself and/or herself perpetuating the "bear and hunter" story. |
| (c) | Circumstances where there is an imbalance of power incapable of being remedied by the mediator. It is very seldom that when couples first walk into mediation, that there is an equal balance of power. Factors which account for such imbalances may be: |
| (i) | one of the parties is the breadwinner and has access to all the finance, or the financial information and the other party is in the dark and lacking in such information; |
| (ii) | imbalances of power relating to children. The old adage that "possession is nine-tenths of the law" will obviously be relevant in custody disputes. Sometimes, an imbalance of this nature might have been caused by a child and/or children having been abducted by one of the parents. Mediation, in such circumstances, might well be inappropriate and conducive to the perpetuation of an abuse. |
| 1.3 | Skill two - Levelling the Playing Fields to Ensure a Balance of Powre between the Parties |
| 1.3.1 | Imbalances might prevail, even in a litigation circumstance and not every imbalance is capable of redress. The mediator, however, must be conscious of the imbalances and make sure that the mediation process is not negatively perpetuating any unfairness. |
| 1.3.2 | How a Balance of Power is Achieved in the Mediation Process |
| 1.3.2.1 | The Mediation Contract Mediation has the legal status of "without prejudice" settlement negotiations. It is standard practice in mediation before the process begins, for the parties, in the first session, to be taken through the mediation contract. Standard clauses in such contract, include: |
| (a) | An agreement that the status of the process will be without prejudice and information so exchanged and received and any interactions that take place therein, will not be used in a Court of Law. |
| (b) | Clauses stipulating that there will not be any binding agreement upon the parties, until such time as: |
| (i) | all the issues of the dispute have been fully resolved, ranging from monetary, asset redistribution, maintenance, custody, access, etc., and; |
| (ii) | the agreement has been reduced to writing and approved by the attorneys representing each party. |
1.3.2.2The Mediator ensuring that each party has retained for himself and/or herself an Attorney whose role will be to advise the party "behind the scenes" of his and/or her legal rights
The parties must be advised at all critical stages as the mediation progresses, to check in with their attorneys to ensure that the process and/or discussions are consistent with the rights that they enjoy. Most financial settlements in divorce cases are grounded in the reaching of agreement between them in respect of their respective assets and liabilities, and income and expenditure. One of the first steps in most family mediation processes involves the filling in of forms reflecting the information and/or the living expenses of each party in a projected post-divorce scenario. The process can lead to serious injustices if inadequate amounts of information are provided and/or if a party understates his and/or her projected expenses. Save and excepting in the most simple of divorces, the mediator should insist that the parties obtain legal advice in completing the various documents disclosing income and expenditure. After such information has been exchanged, Attorneys should check over the documents they receive from the other party to ensure that such attorneys are satisfied regarding the accuracy of the disclosures. A large amount of divorce litigation revolves around asset and/or business valuations and disputes over assets and liability disclosures.
One of the most significant benefits of the mediation process is the possibility of short-circuiting the cumbersome rules of Court relating to disclosure. The mediator often facilitates the setting of parameters for the parties regarding how consensus may be reached on asset values and/or whether or not further disclosure is required. The mediator very often liaises directly with the attorneys of each party. Sometimes, the mediator meets with the attorneys and the clients at a round table conference in order to facilitate agreements relating to asset values and/or how the parties will go about exchanging information and/or documents to reach agreements. Often, when experts appointed by each of the parties are in disagreement with each other, the mediator might chair a meeting of such experts to assist them in narrowing and/or resolving their areas of disagreement.
| 1.4 | Skill Three - The Structuring of the Mediation Process |
| 1.4.1 | One of the most significant factors which can impede any negotiation process, is a lack of focus causing parties talk at cross-purposes. For this reason, mediation goes through a number of structured stages which keep the parties task-orientated and focused. The stages can roughly be divided into: |
| (a) | The contracting stage. |
| (b) | The information-gathering stage. |
| (c) | The negotiation/mediation stage. |
| 1.4.2 | Mediation sessions should never be longer than an hour and a half at a time, as this ensures a number of protections. These are: |
| (a) | The time limit keeps parties task-orientated and reduces "waffling" and/or diversions and distractions. |
| (b) | The time limit keeps parties task-orientated and reduces "waffling" and/or diversions and distractions. |
| (c) | Afford parties the facility of allowing TIME , the great healer, to assist them in coming to terms with compromises they will inevitably have to make and thereby make the appropriate adjustments in their expectations. |
| (d) | Emotionally catch up with the hard realities they invariably have to face in a divorcing context. |
| 1.4.3 | The mediator has to be conscious of the emotional capacities of the parties. In disputes relating to custody and/or access of children and to a surprisingly large extent in financial matters, the negotiating behaviours of the parties are governed by emotional factors. Usually, one party is emotionally ready to accept the divorce, whilst the other has not yet fully come to terms with the termination of the marriage. These dynamics impact on the negotiating behaviours of the parties. The impact thereof, is usually unconscious and might take the form of a party who does not want to divorce, unconsciously, slowing the pace by making unrealistic financial demands and/or bringing the children into the arena, by the withholding of access and/or fighting for custody. There is a strong body of opinion in the mediation profession that maintains that disputes of this nature should not be mediated by a single mediator. This body of opinion opts for the so-called CO-MEDIATION model. This model requires a mediation team comprised of an attorney with the relevant legal expertise and a psychologist and/or social worker to mediate as a team, so that the underlying unconscious factors governing the negotiating behaviour of the parties can be appropriately dealt with. |
| 1.4.4.1 | The Contracting Stage The first stage of the process is the contracting to mediation itself and the creation of safety through the mediation contract, and the explanation of the process to the parties, and the clarifying the agendas of the issues to be resolved. Usually, this is done in the first session. Usually, in the first session, the mediator hands out to the parties forms to be filled in relating to their current living expenses and those in a post-divorce scenario. The parties are told to bring these to the next session, duly completed, with the assistance of their attorneys. |
| 1.4.4.2 | The Information-Gathering Stage |
| 1.4.4.2.1 | At this session, the parties exchange financial information and if there are queries and disputes in this regard, the mediator notes these. One of the skills of the mediator in this context to prevent the process from becoming "bogged down" in disputes relating to detail. This is managed by the use of a flipchart, where, as and when such issues are raised, they are noted and written down and recorded and the parties are promised the facility (and such promises must be honoured by the mediator), to revert back to the issue if necessary. Very often issues evaporate as the process develops. |
| 1.4.4.3 | If the mediator were to tackle the areas of dispute "head-on", the parties would almost inevitably find themselves deadlocked and stuck. Ultimately, the most important skill of the mediator is to assist the parties in achieving a "paradigm shift". The mediator assists parties by assigning tasks to them such as obtaining valuations, attending at "showhouses", to explore various alternative accommodation possibilities in a post-divorce scenario, etc. The mediator, through questions, prods parties into thinking of alternatives and sends them away to do homework such as checking out such possibilities like whether a discount can be negotiated on school fees, whether generic medicines can be obtained as a cost-cutting exercise, or, as often happens, assistance has to be sought from the wider family, etc. The setting of tasks in this manner and the engaging of the parties in collaborative exercises together in the mediation process, allows them to liberate themselves from an adversarial "mind-set". The parties are assisted in re-framing the areas of dispute and arriving at breathtakingingly creative solutions. |
| 1.4.4.4 | A very good example of how mediation assists parties to perceive their issues from a fresh perspective occurs in custody disputes where each party usually enters the mediation process from a rigid mindset. Parties have to be assisted in going beyond the traditional mindsets of pursuing the "TROPHIES" of custody, joint custody, etc., and to collaboratively focus on the childrens' needs. A skilled mediator will side-step terms such as "custody", "access", etc., but be talking in terms of the childrens' routines and needs. The mediator would ask the parties to set out the daily structure of the childrens' routines. In going through the exercise of discussing the needs of the children, their routines, etc., the mediator enquires from the parties which one is available and/or best able to carry out specific tasks at specific times in facilitating the continuation of the routines. The mediator would enquire which of the parents would be available to attend certain sports events and who will supervise what parts of the childrens' homework? One party might be available to attend to the medical aspects. The other, with certain social arrangements. One party might be able to do "lift schemes" on Wednesday afternoons, etc. "Partialisation" in this way, has the effect of getting the parties to be engaged in a collaborative process wherein both spouses no longer feel threatened and find themselves able to come up with fresh and creative solutions, affording all concerned a "win-win" deal. |
| 1.4.4.5 | The Negotiation Stage It is at this stage, once information is on the table, that the tough decisions have to be made and in the financial negotiations and the parties find themselves deadlocked in terms of balancing legitimate and consensually-agreed expenses against the allocation of limited funds and resources that all too often are inadequate to meet such needs. Herein lies a very significant advantage, which mediation affords. Having set out how the structuring of the mediation process lends itself to parties becoming empowered to themselves negotiate their divorce without getting bogged down in acrimony, etc., it is now appropriate to list a number of other skills that the mediator brings on board. Thereafter, I will address the issue of disputes relating to children such as custody, access, etc. These disputes require a specialised form of understanding, which needs to be separately addressed. |
| 1.5 | Human Communication Skills |
| 1.5.1 | Our legal system, by virtue of its adversarial nature, generally causes attorneys and advocates in their family law dealings, to focus on "innocent" and "guilty" parties, "perpetrators" and "victims", etc. The mediator approaches the struggle between the parties from a completely different vantage point. I mentioned earlier that not all couples are candidates for mediation and the mediator has to make a "judgement call" at a very early stage in this regard. Where, however, mediation is appropriate for a couple, the mediator's "mindset" has to be a compassionate one, where the mediator puts himself and/or herself in the "shoes" of both parties, connects with the pain and anxiety of both parties, and perceives the struggle between them as a "dance" characterised by reactive responses caused by both conscious and unconscious fears and/or anxieties that each party is experiencing. Psychologists have defined two differing functions in thehuman brain, namely the functioning of the "reptilian" old brain, which governs our survival responses, including, inter alia, our "fight" and/or "flight" reactive responses and the frontal lobe where we, as human beings, exercise our more rational and human capacities. All human beings, when in a state of extreme anxiety, are incapable in these moments of pressure to operate from the frontal lobe "human" brain and revert to "fight" and/or "flight" behaviour which, in the divorcing process, might take the form of name-calling, withholding of monies, withholding behaviours relating to children, aggressive behaviours, etc. The "old" brain in the divorcing context will inevitably receive danger signals precipitated by financial anxieties, fear of loss of children, fear of loss of marriage, comments that are made, etc., and respond reactively and negatively to these "DANGER SIGNALS". The primary task of the mediator is to create safety and in this regard I am talking about: (a) Legal safety by nature of the "without prejudice" mediation contract. (b) Emotional safety. (c) Financial safety, etc., to allow the parties to be engaged from their more rational and human side. I am now going to list a number of the skills of the mediator which contribute to this necessary form of containment and creation of safety. |
| (a) | The setting of Ground Rules The mediator has to be very strict in insisting that the parties address each other in the mediation sessions, with respect, courtesy and behave appropriately. |
| (b) | The Skill of "Reframing" How often do we all hear in divorce struggles, comments such as "he wants to take me to the cleaners", or "he wants to leave me with nothing", etc. The mediator, when he/she hears such a comment, will reframe the comment by stating "what I am hearing you say is that you are anxious, that you are not going to have the financial wherewithal to have a proper life. Do I understand you correctly?". In other words, the mediator picks up what are emotive "button-pushing" comments and re-frames them into rational unthreatening statements and thereby keeps the emotions contained. |
| (c) | Mirrowing Mediation is a form of dialogue where the parties are doing their own negotiation. It is important that each party has to hear what the other has to say. Unassisted, the parties would not be able to do this. The parties in a divorcing context say things in inappropriate ways. The mediator sumarises what is said by a party in a reframing way and thereby invites the other party to respond. These skills reduce a sense of threat, that otherwise would be experienced by the parties and allows them to operate from a more rational context. |
| (d) | Mutualising Parties divorcing each other are in a great deal of pain. Comments are made such as "you have wrecked my life", "I am now destitute", etc. The mediator reframes such statements with phrases such as "Both of you are feeling a great deal of hurt. Both of you are feeling financial insecurity and/or fear. Both of you are anxious as to how you are going to be able to move ahead in life", etc. |
(c)The agony of divided loyalties.(d)The breakdown of a sense of safety.(e)The exposure to nastiness and ugliness on the part of their parents.(f)The fear of losing parents, etc.
Parties bring their own hurts, anxieties, wounds and psychological scars into custody and access disputes and, more often than not, custody litigation is around unresolved issues in the emotional worlds of the parties more than they have to do with children. One of the interviewees in the documentary, was asked if there was any message that he had to the people out there. He replied "other than in circumstances of abuse, etc., rather let the child go to the wrong party than be exposed to the traumas of custody litigation". The first and most important skill of the mediator in custody disputes is to understand the emotional climate driving the dispute. More often than not, custody disputes are driven by a fear of loss and not by a conscious rational concern for the welfare of the children. More often than not, one party wants the divorce and the other has not yet come to terms therewith. An unconscious process of "holding on" occurs and in most cases, it is these unconscious anxieties that drive the litigation around children. I do not believe that attorneys unassisted are competent to mediate these cases and it is here that co-mediation is of crucial importance. The ways in which parties in this regard can be assisted, are:
| 1.6 | Financial Skills More often than not, save and excepting for the very wealthy, the setting up of two homes, creates tremendous financial strain which requires specialised financial expertise to allow both parties to make ends meet. More often than not, people have to down-size on assets and/or lifestyle and the mediator has to have the necessary skills and/or access to the necessary skills to assist the parties re-structure their finances. More often than not, assets have to be realised for this purpose. |
| 2 | CUSTODY AND ACCESS DISPUTES During the course of my training to be a mediator, I saw a film where adults, who were, as children, the subject of custody disputes, were interviewed. They spoke of the horrors of the experience. These included: |
| (a) | Their self-esteem being damaged by the image of their respective parents being diminished and demolished by insulting comments made by the one parent to the other. |
| (b) | The insecurity and fear of not knowing where they would be ending up living. |
| (a) | The bringing of the unconscious anxieties into consciousness Here, the mediator would engage the anxieties of the parties, articulate them, and check them out with the parties. These skills are seldom found in attorneys and/or people pursuing a legal career and hence, the necessity for co-mediation with a psychologist and social worker more trained in this area. |
| (b) | The parties in disputes relating to children should be engaged in a therapeutic process, referred to appropriate therapists and the mediator should liaise and compare notes with the therapists in question. |
| (c) | The slowing-down of the pace of the divorce To the extent that the one party is not ready to let go of the marriage, space may be created by allowing the divorce to proceed to a slower pace. Very often, as a party moves on to the next grieving stage, he and/or she becomes more able to let go of unreasonable claims relating to children. |
| (d) | Partialisation I have already dealt with this aspect earlier on. |
| (e) | The appointment of neutral experts such as child psychologists, etc. to make recommendations to the parties. |
Conclusion
John Haynes, an American, who is one of the world's foremost exponents of mediation, says that throughout the process, the mediator has to keep looking for the "spark of soul" in the parties which he describes as the residual goodwill that still exists between them. The mediator picks up on this little flame of soul power, nurtures it, spreads its light. This searching for the good to be nurtured in the tough divorcing process, is, says Haynes, nothing other than the search for G-d in the spouses. Whilst divorcing parties might be ending their marriage, neither of them are divorcing the children and their partnership as the parents of their children will have to continue in the long-term. The parties have to be helped in re-establishing trust, goodwill and understanding of the other, in order to enable them to appropriately deal with each other. They will be together at school functions, their childrens' graduations, their childrens' weddings and ultimately, in enjoying and playing a role as grandparents. The adversarial structure of a legal system should be the last resort and only utilised when a human solution cannot be found. There is a great deal of research which has proven the lasting benefits that mediation offers. Divorce agreements arrived at through mediation, are honoured to a far greater extent than Court-imposed agreements.