Mediation

What is mediation?

Mediation is a confidential, informal and non-adversarial way to reach agreement and so resolve disputes for a wide range of issues, including money issues when starting or ending same sex relationships. Each party must consent to participate in the mediation process voluntarily and the parties control the process, retaining the right to make the final decisions themselves.

The mediator helps the parties to reach their agreement and make a decision by guiding them through the mediation process, helping them to communicate with each other and assisting them to focus on the most important issues.

Both parties must agree on the appointment of the mediator, who is independent and impartial. The mediator will not judge your dispute and tell you the answer, but will assist both of you to come to an agreement that works for each of you.

Neither of you brings your lawyer to the mediation and your lawyers do not participate in the mediation, though you may choose to use your lawyers to review the document summarising the agreement you have reached which will be binding and enforceable.

Why use mediation?

The benefits of mediation are that it takes less time and costs less money than going to Court when starting or ending same sex relationships. Mediation can be undertaken in a matter of hours or may take a couple of days, if the matter is particularly complex, whereas getting to Court may take months and receiving a judgment may take years.

Mediation allows you to control the process, to focus on discussing the issues that are important to each of you and working out an agreement that you both can live with. Mediation is less stressful than a combative Court process and allows each of you to retain your dignity and the prospect of still talking to each other afterwards.

Mediation is confidential without lawyers, the public or the media being involved, which is often particularly important for same sex couples in senior or high profile roles.

How does mediation work?

Mediation works by bringing the two of you together in an informal environment to discuss and agree how you are going to handle money issues when starting or ending same sex relationships. Before the mediation, you will each need to have obtained independent legal advice on your position so that you are able to make an informed decision at mediation and you will each need to have prepared a detailed statement of your cash flow, assets and liabilities.

Both of you will come to the mediation at the same time and the mediator will bring clarity to the situation by asking each of you to talk about your position, your issues and any proposals you may have for settlement. The mediator will then help you communicate with each other by conducting a series of conversations with you, often together at first, then separately, then together again.

Such conversations will help each of you in fully understanding the other’s viewpoint, so overcoming perceptions, assumptions and misunderstandings, focusing on needs and interests rather than positions. The mediator will guide both of you to find areas of agreement and disagreement and then to discuss ways to overcome any disagreements so that you can both reach an agreed outcome that you can each live with.

Finally, the mediator will help both of you draft a suitable document to record your agreement, which you may choose to have reviewed by your lawyers.

Who is the mediator?

A mediator is an independent and impartial person who has been specially trained and is qualified and accredited as a mediator, often with specialist expertise and experience such as in money disputes in same sex relationships.

The mediator should have an informal, facilitative and professional style, suitable for encouraging each of you to communicate constructively while moving you towards your agreement within a reasonable time period.

What is the role of the mediator?

The mediator can help both of you achieve agreement on money issues when starting or ending same sex relationships by being completely independent and impartial and treating each of you fairly and equally.

Unlike a Judge, the mediator does not make a decision for you and force that decision upon you – the mediator helps each of you through a process so that you can both make your own decision that each of you can live with.

Unlike your lawyer, the mediator will not give you legal advice but may assist you with issues such as the value of property, equities, motor vehicles, furniture and so forth based on specialist knowledge.

The mediator’s role is to facilitate communication between each of you, keep your discussion on track and focused on your key issues and to help you both to reach an agreement that you can each live with.

Who attends mediation?

In order to discuss the money issues specific to starting or ending your same sex relationship, both of you will attend mediation.

Your lawyers will not attend, nor your accountants nor financial advisers and neither the public nor the media attend, which is often particularly important for same sex couples in senior or high profile roles.

Before the mediation, you will each need to have obtained independent legal advice on your position so that you are able to make an informed decision at mediation and you will each need to have prepared a detailed statement of your cash flow, assets and liabilities.

Who makes decisions at mediation?

At mediation to agree money issues specific to starting or ending your same sex relationship, both of you make the decisions.

The mediator will not make the decisions for you and then force these upon you, but both of you need to take responsibility for making your own decisions which each of you can then live with.

The mediator’s role is to facilitate communication between each of you, keep your discussion on track and focused on your key issues and to help you both make decisions and reach an agreement.

What do we need to bring to mediation?

At mediation to agree money issues specific to starting or ending your same sex relationship, the most important item to bring is yourself.

Before the mediation, you will each need to have prepared a detailed statement of your cash flow, assets and liabilities with supporting documents which you must bring to the mediation so that each of you is fully informed of the other’s financial situation when making decisions.

Also, before the mediation, you will each need to have obtained independent legal advice on your position so that you are able to make an informed decision at mediation.

How does mediation differ from going to Court?

Mediation does not involve lawyers or Court costs and so is a very significantly cheaper way of reaching agreement on money issues when starting or ending same sex relationships.

Mediation does not involve a judge who makes a decision that may not suit either of you, but allows each of you to talk together with the guidance of a mediator and reach your own decision, being an agreement that works for both of you.

Mediation does not involve formal and rigid Court processes, with the mediator guiding both of you through an informal and flexible process designed to help you reach an agreement.

Mediation is confidential, with only those people there whom you both agree can be there and is not conducted in an open Court room with public access or media.

Mediation has many differences from going to Court ( © www.familylawmediators.co.za ):