Can conflict ever be a good thing? In the context of divorcing and separating couples, the answer is probably not.
Most people would agree that being in sustained conflict can be exhausting. Most strive for a harmonious balance life, free from the stresses and complexities that life invariably throws our way. When a marriage or partnership breaks down however, often everything can become overwhelming. It is normal to feel angry, upset and frightened for the future.
Objectivity can take a vacation when dealing with the divorce process. Many turn to mediation to try and resolve issues, look to move forward and come to terms with the breakdown of their relationship.
Communication problems are often a key stumbling block in attempt to reach resolution on key issues such as children, money etc. Often it is the case that "the most important thing in communication is hearing what isn't being said. The art of reading between the lines is a lifelong quest of the wise." It is how parties communicate and deal with disagreements post separation that is often crucial to the final outcome.
So, what is mediation?
Mediation offers a forum for parties to have a discussion and endeavour, with the help of the mediator, to come to a resolution. It is important that parties are aware of some fundamental principles of the mediation process which are:
- Confidentiality - mediation is a confidential discussion that cannot be repeated in Court. What this enables the parties to do is have an open discussion about the issues that are important to them without feeling that anything may be repeated to a Judge if their case ends up going to Court. The parties can, of course, tell their solicitors what is said in mediation. The only time the confidentiality rule can be overridden is in the event where a child may be at risk of harm or indeed one of the parties may be at risk.
- Voluntary - mediation is an entirely voluntary process. There is somewhat a misconception that parties have to attend mediation. There is a requirement that if an application to the Court is required (with some exceptions) the applicant has to attend a MIAM (a Mediation Information and Assessment Meeting). The purpose of this meeting is to assess whether mediation might be appropriate and to invite the other party to attend. If the latter chooses not to attend, or mediation is simply not appropriate, then the mediator will sign the MIAM form and the party can then proceed with their application to the Court.
How does it work and is it for me?
Mediation can take many forms and should be tailored to what the parties' want – after all, it is their process. Normally parties are initially seen separately and thereafter a number of joint sessions follow. The number of sessions again, depends on each individual case.
Mediation is not for everyone and there may be many reasons why someone might not feel comfortable in a mediation setting. They may feel that they will not be listened to, intimidated by the other party, afraid to speak freely and say what it is they want to say. They may think that the other party will not make full and frank disclosure of their financial details and therefore the process will be a waste of time. These are normal concerns. The important issue is to remember that mediation is about having a discussion and to try and warn off the polarisation and hostility that can quite easily take over when parties embark down the separation road.
If the parties reach an agreement in mediation, at the end of the process a Memorandum of Understanding is drafted by the mediator. This is not a legally binding document. It simply sets out for the parties and their respective solicitors what has been agreed. That agreement has to then be put into a Consent Order (for a financial agreement) for the Court to approve. The parties can change their minds after the mediation process and before a final Order is approved by the Court.
It is commonly accepted that a solution reached by separating parties through negotiation and discussion rather than one imposed by the Court process is more likely to leave the parties to a divorce or separation less bruised and battered by the process. Most people do not seek conflict.
Conflicts are frequently fuelled by miscommunication and misunderstandings. Surely it is better to "shake hands" at the end of a deal than walk away with a clenched fist and a closed mind.