Fair Divorce | How to Mediate with a Reluctant Party

Mediation should be your first option so that you preserve your relationship going forward, but what are you to do when the other person does not want to enter into the process?

Many people are reluctant to engage in mediation for various reasons, the most common of which is the lack of understanding of the process and what it means to mediate. There is also the misconception that the mediator is someone that is chosen by the other party therefore the mediator must be on their side.

Below is a brief overview of how to engage in mediation with another person so that you both benefit from the process.

What is Mediation?

Mediation is a voluntary process in which a mediator assists the parties to explore issues that are in dispute by providing a safe environment for them to communicate directly to each other in discussions with the hope of reaching their own agreement at the end of the discussions. The process is confidential and is conducted “without prejudice”. Therefore the parties can make suggestions on how they would be able to reach decisions with an option of going back to mediation after reality testing their suggestions and making changes to their suggestions, before completing them in a formal document.

Mediation can happen at any time of the dispute even if the parties have already issued summons and documents to each other. During the stages of mediation parties may still consult with experts and their attorneys for advice and direction, however all legal proceedings are stayed while the mediation process is underway. Parties must therefore be aware of their time limits and not allow their legal proceedings to lapse (become prescribed) while they are engaging in mediation.

Mediation is a process that involves communication and engaging with each other in good faith. Parties must take responsibility for their actions and the decisions they make by communicating with each other constructively. The length of the process depends on how effective the parties are in moving forward to reach resolution. Since no documents are passed between parties, parties spend less time waiting for a response as they are in the same room at the same time in mediation and can ask each other for feedback directly. The process allows for each party to be heard and the feeling of a combative lose-win situation is replaced by a win-win outcome.

Who is the Mediator?

It is immaterial who has contacted the mediator first. The mediator does not hear the full story of one person to decide who is in the wrong or right. The mediator facilitates the discussions but remains neutral and unbiased throughout the process, which means that the mediator must not get involved in making any decisions, nor does the mediator use their own life experiences to influence the parties into making a decision. The mediator does not represent either one of the parties and should not conduct themselves as such, even after the mediation has concluded. The mediator provides information and never advice. An effective mediator will not promote and prolong the dispute but rather will endeavour to guide the parties forward. In some instances the mediator may consult with each party separately if it’s in the interests of both clients to communicate effectively. It is the duty of the parties to verify the credentials of the mediator so as not to fall victim of a novice who lacks experience in providing adequate information and managing the process.

Reasons to engage in Mediation

If you have decided that mediation should be the option to carry out your decision making process, you need to have the other party voluntarily submit themselves to the process with you. The courts in South Africa have become more open to suggesting mediation as the first option to attempt resolving a family matter dispute over litigation, I refer to the 2010 cases of MB v NB and S v J, where in both instances the judge stated that “mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort.”

This could form the basis for explaining your reasons to the other party for engaging in mediation. Mediation does save costs and time because you both determine the pace at which the process unfolds and you should pay for costs that are explained to you and not bulk sums of money to be used as and when the mediator feels necessary to use.

Once you have decided to discuss mediation with the other party, and the question arises about who should contact the mediator, you may both decide on who the mediator will be and who will make the first contact. If it is via email then preferably you may copy the other person on the first email requesting further information or the services of the mediator. In our practice we encourage the person who has contacted us to include the other person in all future correspondence and we ask that both their contact details be given to us so that they both receive our feedback at the same time so as to maintain neutrality at all times. We also suggest that we contact the other person directly so that they are aware of our services and how it can benefit their process.

Other Support Present

In some instances both parties are allowed to bring in their attorneys and you can suggest this to the other person, if they are reluctant to engage in mediation for fear that they may be prejudiced in some way. Attorneys will have the process and their involvement explained to them. The process is not conducted as a stage for trial but rather to look for ways to reach agreement, issues that do not achieve agreement can always be separated and decided in a court of law. At all stages of mediation everyone involved will be reminded of the confidential and without prejudice nature of the process.

At Fair Practice, we also mediate with parties who want to re-engage with each other after their divorce. They have explained to us that, even though they were divorced on an uncontested basis and their attorney drafted an order in the shortest amount of time, once they had to put these terms and clauses into action it suddenly became unrealistic. They realised that they were handed a generic divorce order that did not address their specific family’s needs and certainly not the needs of their children. They felt that if they had spent time in mediation discussing what the contents of their divorce should have been, it would have addressed the finer details with regard to their children that they knew personally about and at the same time avoided a lot of unnecessary bickering and misunderstanding after their divorce.

Communication Methods

The end of a relationship brings out harsh emotions in anyone and communicating with each other becomes difficult and hindered with stress and anxiety. Mediation will allow you both to work through your communication methods with each other. When you explain to the other party why you should both consider mediation, one factor that is crucial to understand is that you will both need to behave in a responsible and mature manner in your approach to mediation. By suggesting mediation, you must not make a demand or threaten the other person to attend. Explaining the benefits of reaching a mediated agreement, even if only on some of the issues, is a step in the right direction and opens up the channel for effective communication.

You two are the only ones who will have to live with the consequences of your decisions especially if it involves your children, not your attorneys or the judge, therefore you should at least give yourselves the opportunity to create a realistic agreement that preserves your relationship as parents going forward. Mediation should not be your last resort but an attempt to reach agreement on some issues.

During the process you may find that you both actually have a lot more in common that can be agreed on instantly once you begin directly communicating with each other.

This article was written for fairdivorce.co.za by Adv. Veerash Srikison (Internationally accredited mediator at Fair Practice in Johannesburg)