Interdisciplinary co-mediation

1. INTRODUCTION

The application of mediation as dispute resolution mechanism in Family Law disputes, was entrenched in the Children’s' Act 38 of 20051. The Children's Act became effective on 1 April 2010.

The Brownlee judgment2, as confirmed by Lewis AJ in the case of S v Mrs J & Mr J – case no 695/2010 SCA, further entrenched the necessity and desirability of mediation as an approach “conducive to conciliation and problem solving.”

Acting judge Brassey makes the following statements at [50]:

“Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by one of several hundred people in the country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and , by drawing on his or her owm legal and other knowledge, sensitively encourage an evaluation of the prospect of success in the litigation an an appreciation of the costs of continued litigation, particularly in the case of the loser.”

The learned judge continues at [52]

“If mediation is appropriate in commercial cases, how much more apposite is it in family disputes? They engage the gamut of emotions, from greed through pain through vengefulness; they generally involve the rights of children, majors as well as minors, who can only experience fear and bewilderment at the breakdown of the structures of love and support on which they, as family members, have come to depend; and the division of the estates of the parties, intertwined as they invariably are, can be very complex and are frequently made the more so by parties' bloody mindedness and duplicity. Throughout the process, moreover, the legal costs come out of the common pot and, since the deplete the assets that can be used for the advancement of the members of the family, must be the subject of continual concern and anxiety, Divorce proceedings are by their nature 'traumatic events'. (see: Clemson v Clemson J [2000]1All SA 622 (W) at 627.)”

In addition to the Children’s' Act, there are more than 40 other acts that make provision for the use of mediation in the resolution of disputes. This clearly shows the trend away from litigation towards less costly and more effective dispute resolution in multiple subject matter fields ranging from pension disputes, income tax, land rights and various others.

It is trite that mediation is fast becoming a preferred dispute resolution mechanism.

The focus of this document will be on the application of interdisciplinary co-mediation in family law disputes.

Co-mediation, however, should not be limited to this field only since the generic principles which make it desirable and effective in Family Law, apply to most any dispute.

2. SOCIAL JUSTICE

Social justice 3 was formed in 2006 by Laurie and Anneke Greyvenstein. Since then, more than 10 000 families have been assisted with the resolution of disputes without the necessity of litigation.

Through innovative mechanisms, families are empowered to resolve disputes peacefully and are they assisted in finding their own win-win solutions. Lasting solutions to suit the needs of clients are formed via accessible, informal, less stressful and cost-effective mechanisms.

With approximately 13 million children in South Africa growing up without both biological parents in one home, the focus is on the children and their best interests. Due to the enormous need for intervention in family disputes, the traditional approaches don’t have the capacity to deliver justice timeously to children and families. For many court users who have no alternative options, justice becomes a tedious and sometimes impossible exercise; out of their reach.

Social Justice also provides accredited courses to individuals, corporates, NGO’s and government departments.

The drive of Social Justice with regard to interdisciplinary co-mediation, is to ensure that all parties to family disputes have their best interests served. At Social Justice, we are of the opinion that where a mediator with a legal background and a mediator with a mental health background (psychologist, social worker), work together as co-mediators, the most favourable outcome can be achieved.

We believe that all aspects of divorce, all parental rights and responsibilities disputes (unwed fathers' rights, maintenance, post divorce reassessment of rights and responsibilities etc.), should be referred for mediation, and specifically interdisciplinary co-mediation.

1. INTERDISCIPLINARY CO-MEDIATION

What is proposed in this document is the concept of interdisciplinary co-mediation by a mediator with a legal background and a mediator with a mental health background, confined to family law for current purposes.

Lois Gold proposed this concept as long ago as 1982.4 Gold's concept of interdisciplinary mediation for divorces was certainly profound in 1982 in that it recognized the weakness of attempting settlement discussions without assistance for the emotional component. The concept is therefore not unknown and is widely applied in the growing Collaborative practice movement internationally.

Karen A. Foreman, a proponent of co-mediation defines it as follows: “Co-mediation is a style of mediation that involves multiple mediators, usually two, which in some way may compliment each other by gender, personality, culture, professional background, or by other ways in a manner that can improve the quality of both the mediation process and its outcome. Interdisciplinary mediations, are mediations performed by mediators with different professional backgrounds and disciplines. At its best, co‐mediation is the harmonious working of complimentary mediators who offer a diversity of skills, experience, and personality. “5

Author and commercial co-mediator David Richbell states6: “The advantages of two minds, two backgrounds, two genders and two styles apply to all mediations, large and small, simple and complex. As such, the co-mediation model has been recommended as a process superior to traditional solo mediations in family law – where it is most frequently used – as well a commercial, medical malpractice, workplace, environmental, and just about any type of dispute.”

Foreman describes the motivation for such a combination of mediators as follows:

“The underlying goal of mediation is conflict resolution. Mediation is a negotiation process that requires a ‘give and take’ approach to ironing out an agreement. The research in co‐mediation emphasizes the approach of a lawyer/non-lawyer co‐mediation team as being ideal. A lawyer mediator may be concerned with issues pertaining to the law and legal aspects of the dispute. However, there are often emotional issues that can get in the way of resolution. Often, a non‐lawyer co‐mediator can assist with helping the parties field their emotional concerns. A non‐lawyer co‐mediator with excellent empathy skills can assist the client in moving through the emotional barriers that prevent conflict resolution. This is not to say that lawyers, especially family lawyers, do not have empathy skills. The idea is to tailor the mediation experience to maximize the likelihood of its success and create enduring resolutions.”

The complexities and dynamics of family conflicts are profound. The presence of a mediator with an understanding of characterological defensive structures, as well as family systems dynamics, is vital to the resolution of potential stale mates in the mediation process. In addition, having a familiarity with and an understanding of the emotional dynamics of the parties to the mediation, allows for the possibility of these dynamics being tamed and managed in order to secure an acceptable solution to the dispute.

A mediator well versed in family law is the flip-side of the co-mediation coin. A clear and concise understanding of the workings of the law can free up parties to explore a range of options and utilize creative solutions. Legal problem solving skills are integral to solving the entire dispute in a manner that will result in complete finalisation as well as an agreement that could be made an order of court and with which the parties will willingly comply as their own solution to their unique fact set.

This is ultimately the goal of any mediation: for parties to be assisted in finding their own, tailor-made-by-them-for-them, practical solution to their dispute. The presence of a co-mediator in the form of a social worker also gives added weight to the best interests of the children in the matter. Parties in conflict often tend to lose sight of the extremely detrimental effect of persistent parental conflict on children. Heavily litigated matters tend to involve children as weapons between warring parties.

Children of divorce may have any of the following as reactions to the divorce of their parents:

Overwhelming sadness and anxiety;

Fear of betrayal;

Conflicting loyalties;

Worry about the non-custodial parent;

Feelings of powerlessness;

Immense feelings of loneliness;

Panic;

Guilt;

Denial;

Anger;

Low self esteem;

lack of concentration and

disruptive behaviour.

Children could also be given an opportunity to effectively have their voice heard in the mediation process since the mental health co-mediator is trained and equipped to take the above mentioned reactions into account when the input of a child is received. As a logical consequence, feeling heard, consulted and having some control over decisions made with regard to the consequences of the dissolution of the marriage, may alleviate some of these very negative feelings that children may have.

1. APPLICATION IN PRACTICE

In view of the intended audience of this document, the authors accept that the reader is familiar with the constraints and challenges of the legal system as it pertains to the resolution of disputes originating from familial relationships.

The authors assume that the reader is familiar with the cost of litigation as it relates to divorce, care and contact disputes as well as maintenance disputes.

There is an assumed knowledge of the amount of time it takes from initiating a maintenance application in the clogged maintenance court, until there is finally an order – sometimes years go by before the applying party receives the first court ordered payment.

The reader is assumed to be familiar with the discord, discontent and damage to relationships that litigation in general causes.

What if there was a way to resolve these disputes effectively, amicably and in the best interests of any children involved?

Imagine if parents could sit around the table immediately after deciding there is no way to salvage a marital relationship. Imagine the upside of no resources wasted on litigation – resources that could far better be applied to the maintenance of the children or rehabilitative maintenance of a spouse. Imagine divorced parents maintaining a positive, co-operative parental relationship undamaged by brutal and protracted litigation.

Imagine the positive impact on the children involved – this is the driving force behind this call for the implementation of interdisciplinary co-mediation.

By creating a system where all family law related matters are referred for interdisciplinary mediation PRIOR to any litigation, prior to the first visit to the Maintenance court, prior to the visit to the Children's Court to institute proceedings, prior to visiting attorneys to initiate divorce proceedings, parties in dispute can be guided to come up with their own solutions expeditiously and effectively. Solutions that are not forced on them by a magistrate or judge.

Divorces can be mediated prior to summons being issued and settled on an uncontested basis – relieving the backlog in the court system and expediting closure and certainty for all involved.

Maintenance settlements can be mediated and brought before court to be made an order – again assuring that those most affected by financial hardship have their needs met as expeditiously as possible.

Contact and care disputes can be resolved with the input of mental health practitioners ensuring that children have the best possible relationship with both parents – as is their right. Mud slinging and accusations can be dealt with by persons equipped and empowered to do so without lengthy interruptions of contact with parents.

With support and buy in from stakeholders and persons of influence in the correct spheres, this conciliatory, co-operative approach could bring about monumental social change and upliftment.

“Justice delayed is justice denied” as the adage goes, could finally be rewritten.

This is the intention of Social justice and the passion of the authors of this document.

1. CONCLUSION:

In “Team Mediation: An Interdisciplinary Model Balancing Mediation in the "Matrix" by David C. Hesser and Elizabeth Jarrell Craig7”, the following is said about the potential outcome of mediation:

“In other words, a principal goal of mediation could be to give the participants an opportunity to learn or to change. This could take the form of moral growth or a 'transformation,' as understood by Bush and Folger to include 'empowerment' (a sense of 'their own capacity to handle life's problems') and 'recognition' (acknowledging or empathizing with others' situations). In addition, the parties might repair their relationship by learning to forgive one another or by recognizing their connectedness. They might learn to understand themselves better, to give up their anger or desire for revenge, to work for inner peace, or to otherwise improve themselves. They also might learn to live in accord with the teachings or values of a community to which they belong.“

If indeed, by applying the interdisciplinary co-mediation approach, the above stated outcome could be achieved, one could only marvel at the difference in the lives of parties and their children post mediation and finally post dispute.

No longer will the parental relationship be slaughtered as casualty of war in expensive litigation; no longer will parties remain opponents, but if able to truly forgive and realise their connectedness, as stated, they will be able to co-operate in the best interests of the innocent – the children.

Gone will be the desire for revenge and though the spousal relationship may be terminated, perhaps a new-found respect and understanding will foster a positive connection that endures for the sake of the children.

About the author.

Jennifer Bands is an admitted attorney(currently non-practising) and a family mediator. She completed the LEAD divorce mediation training in 2011. As a result of her personal and professional experiences with the effect of litigation in Family law disputes, Jennifer has joined forces with Social Justice in order to further the implementation of mediation in these disputes.

1Sections 33,34 & 35 are of particular importance in this regard.

2 MB v NB 2010 (3) SA 220 GSJ

3https://socialjustice.co.za/

4The Psychological Context of the Interdisciplinary Co-Mediation Team Model in Martial Dissolution, 20:2 FAM. CT. REV. 45, 49 (Dec. 1982).

5https://www.formanmediation.com/articles/co-mediation-defined/

6 Gitchell & Plattner, 1999; Lerner, 1999; Bond 1997; Louis 1999; Richbell; Guadagnino.

7Pepperdine Dispute Resolution Law Journal [Vol. 7: 1, 2007]