What is family mediation? Is it part of the separation proceedings? Is it aimed towards an amicable separation or towards reconciling the parties? Is mediation truly effective? Are the spouses’ and the children’s interests truly safeguarded through mediation?
Family mediation is a process in which a third person, being the family mediator, helps the parties in a dispute, being the couple, to resolve it (John M. Hayes and Stephanie Charlesworth, The Fundamentals Of Family Mediation, 1996, New South Wales, p. 1).
First of all, family mediation does not take place solely before the couple is separated but it can also occur after separation has been pronounced. In fact, couples in trouble can resort to family mediation at any time when the extent of their dispute does not entail going before a judge straightaway. When family disputes end up being heard before a judge, the deciding power lies in the hands of the judge whereas in family mediation the deciding power rests with the couple itself, being led and helped towards reaching a mutual agreement by an impartial family mediator. For example, a couple who signed a contract of separation and may subsequently want to amend it first try to reach an agreement through family mediation and only if such agreement is not reached does the dispute end up in court to be decided by a judge in Malta or a magistrate in Gozo.
Family mediation is usually associated with married couples only. However, it can also be resorted to by unmarried couples if they have children in common. Family mediation is the first formal step a couple takes when attempting to separate.
Family mediation usually leads to an amicable separation, that is, a separation where the parties mutually decide how the assets should be divided and, if there are children, who should have “custody” and who should have “access”. However, family mediation is not solely aimed towards an amicable separation.
First and foremost, the role of the family mediator is to bring the couple back together again if there is scope for reconciliation. Only if the couple adamantly refuses to reconcile does the family mediator help the couple towards reaching an amicable agreement about their separation. The family mediator is impartial, that is s/he cannot favour one party or another.
Family mediation and the ensuing amicable separation is a less arduous process than a contentious separation before the court. This is so because, firstly, the process does not take long: Two months, which can be extended only if necessary (mediation can be closed off if, in the opinion of the mediator, no agreement whatsoever can be reached and prolonging the mediation process would be to no avail). Secondly, the “power” lies with the couple itself. The judge will oversee that the terms of the contract of separation are fair before being signed, that is, for example, that the rate of maintenance is a fair and just one.
The interests of the child are also safeguarded in family mediation because a child advocate can also be appointed during mediation proceedings to hear the child if it is deemed necessary. Whereas a Family Court sitting takes place before a judge, family mediation is less formal. Although they take place inside the Family Court, the mediation proceedings are conducted in a separate room involving the family mediator, who, obviously, is bound by the duty of confidentiality, the couple and the respective lawyers. The setting, therefore, is quite informal, which is conducive to helping the couple to either reconcile or to reach an amicable separation.
Another positive aspect about family mediation is the fact that what is said during mediation remains there, that is, the mediator cannot be called as a witness to state what was said during family mediation if the couple ends up in a contentious separation. So the couple has the peace of mind that the utmost confidentiality of the mediation process will be respected.
Another positive attribute is that family mediation is less costly than a contentious separation.
One other aspect about family mediation is that the mediation is non-adversarial, that is, even though the parties might be adversaries, that is, having conflicting and opposing interests, still, mediation is not geared towards being an adversarial system. Rather, it is aimed towards reaching a solution acceptable to both parties.
Although family mediation is a stepping stone towards an amicable separation, still, family mediation can boast of being a success because it does actually help the couples towards reconciliation and not solely towards separation. And, only if reconciliation is not possible, because the couple adamantly refuses to reconcile, do the family mediators gear up towards an amicable solution for the couple’s separation, if possible.
annmarie.mangion@gmail.com
The author is a lawyer and a published author with a special interest in family and child law.