Marissa Galloway-Bailey decided to focus on her passion after several years of practising as a family law attorney in Johannesburg.
Apart from being an accredited member of SAAM (South African Association of Mediators) and a founding representative for the newly- formed SAAM Johannesburg South Regional Committee, she is also accredited by the University of Stellenbosch’s Africa Centre for Dispute Resolution, in conjunction with Conflict Dynamics, as a civil and commercial mediator, She also holds a certificate of accreditation from the Centre for Effective Dispute Resolution in the UK (United Kingdom). Furthermore, Marissa has been appointed to the Department of Justice & Constitutional Development’s pilot project for Court-Annexed Mediation, as an accredited Level 2 Mediator.
The National Accreditation Board for Family Mediators (NABFAM) sets out the standards required for accreditation as a family mediator. Mediators are required to have completed specialised training which meets the national accreditation criteria and must also have fulfilled additional requirements in order to establish a standard of competency. For example, mediators who are social workers or psychologists by profession, have to attend additional training on the legal aspects of family matters. Conversely, additional training on the relevant psychological issues in family matters has to be attended by mediators with a background as attorneys. The process of meeting the requirements for accreditation takes about two years.
Conflict is a part of life and with the current divorce rate at an estimated 60%, Marissa says that most people will go through a serious family dispute at least once in their lives. Family conflict is emotionally uncomfortable and it makes people feel that they are less capable of making the right decisions by themselves. Therefore, people tend to think it would be easier to hand over the process of divorce to a legal professional. The truth of the matter is that the legal fraternity is impartial and concerned with points of law and fact, not with the best possible outcome for a particular family. Mediation, however, affords us the opportunity to engage with our conflict in a facilitated way, with the intention of striving towards a solution that works best for all. The mediation process explores not only legal issues but the well-being and the unique experience of the whole family.
Marissa’s vision is for mediation to become an integral part of society’s conversation about conflict and of the experience of family dispute resolution, making mediation more of an everyday practice.
Sounds great, but what if one party is not interested? Mediators generally offer a comprehensive introduction session to the process of mediation, at the first consultation. Once the process is understood and agreed to, a written agreement is entered into between the parties and the mediator. The mediation is confidential and without prejudice, which means that until such time as an agreement is reached, the parties are not bound by their discussions and they are free to explore their dispute in a safe and neutral space.
Very well then, but what if one party (or both) is not transparent and/or honest? “The principle of mediation is based on voluntary participation and an agreement to negotiate in good faith. If the agreement is not adhered to, the mediator will remind the parties that they are the ones who will make the process work or not. All relevant information will have to be disclosed, sooner or later. It does not serve them to be evasive so they might as well save themselves time and unnecessary expenses” says Marissa.
She also adds that during divorce mediation, legal advice is still required regarding the legal process, the parties’ rights, and relevant issues of law. “I make it very clear to the parties, that before they sign any agreement, they have to be satisfied that their interests are protected and that they should each get their attorney to look over the agreement.”
Marissa explains that divorce essentially has two components: dissolving the matrimonial relationship and clarifying parental responsibilities, including maintenance. “As much as we all want to get it over and done with as quickly as possible, we must remember that separation and divorce is a process that takes time and quite a bit of work. Decide where best to spend your time and money – does it make more sense for you to go to a mediator to work out the financial calculations and parenting plans, or would you rather pay two attorneys to do the same work gathering information and effecting disclosure?”
The biggest challenge lies in educating parents about the developmental stages of their children and children’s rights. “It concerns me that people think it is more important to spend money on attorneys than it is in investing in a proper understanding of their children’s and their family’s experience of conflict and separation. These are long-term issues with very real effects.”
How do I, as a parent, ensure that my children’s voices are heard and decisions are made in their best interest? Marissa explains that The Children’s Act requires age appropriate involvement, accommodating individual children’s developmental stages whenever decisions are made that concern a child’s rights and their relationship with their parents. Family Life Centre took the initiative of identifying mediators with the appropriate background in psychology or social services and provides additional training to best fulfil the requirements of the Children’s Act in bringing the voice of the child to the table. It is important to understand that a child interview is not the same as a child assessment by a psychologist. In a child interview, the mediator will speak to the child for the narrative of their experience with their parents and the child interviewer will convey that narrative to the parents in the next joint mediation session with both parents.
Much like a retirement plan or insurance, Marissa advises that perhaps we should be more proactive in our thinking about conflict. We should develop a strategy. For separation or divorce, start with these basics:
- Don’t wait until a crisis happens to think about how you are going to deal with the crisis. Discuss and consider the consequences that a change in your family dynamics would bring. Think about how you define the most important needs for yourself and your family.
- Gather information and explore your options; get to know who the attorneys, psychologists, counsellors, social workers and mediators are in your area. Find out about support groups and parenting courses.
- Don’t avoid conflict and leave it to others to decide. Take ownership and engage in the process.
Marissa concludes that at the end of the day, we are the authors of our own experience and we are as responsible and invested in how our relationships change or dissolve now, as we were when we first nurtured the relationship.
Posted by Sinta Ebersohn (Creator of fairdivorce.co.za – Stellenbosch RSA)