Divorce mediation is an alternative dispute resolution process that Kansas couples may use to settle differences on specific issues in a divorce. Spouses may decide on their own to try mediation, or a judge can order mediation in a divorce case. Before you consider or begin mediation, you should have an understanding of how it works.
Editor: this is an American article that has significance in South Africa. Mediation in South African divorces is now compulsory.
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By Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC, KansasLaw Firm Website: https://www.sloanlawfirm.com/
Our discussion takes into account the provisions of the Kansas Family Law Code that govern mediation in domestic and family matters, as well as Rule 16.3 of the Kansas Supreme Court. The Court Rule designates mediation as the primary ADR process in Kansas litigation matters, addresses the process, and provides for Court approval of private mediators who meet certain requirements.
WHAT IS A MEDIATOR’S ROLE?
The statutory definition of mediation in the Kansas Family Law Code contains three important parts that explain the role of a divorce mediator. First, the law states that mediation is “the process by which a neutral mediator … assists the parties in reaching a mutually acceptable agreement as to issues of child custody, residency, visitation, parenting time, division of property or other issues.”
As the law states, a mediator is a neutral third party. While mediators often are lawyers, the mediator does not act as legal counsel for either spouse, nor does the mediator provide legal advice to the spouses during divorce mediation.
The definition goes on to state that the role of a mediator is to assist participants in “identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement.” By working with both spouses in an informal environment, the mediator helps them address their differences, establish priorities, and reach agreement when possible.
Finally, the definition section in the law states: “An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.” A mediator does not make decisions for the parties or force agreements on the spouses in a divorce mediation. Instead, the mediator explores both spouses’ viewpoints in an effort to identify areas of agreement. All points of agreement in a mediation are based on the spouses’ own decisions, not the mediator’s.
HOW DOES THE MEDIATION PROCESS WORK?
Mediation sessions occur in an informal and safe environment. Only the spouses attend the session. Even if a participant has legal counsel, the lawyer does not attend the session. Some mediation participants do have a lawyer, but not all do. The mediator will suggest to the parties that they consider consulting with an attorney, especially at the end of mediation, but legal representation in a domestic matter is a choice that each person makes.
All discussions during mediation are strictly confidential. Statements made by the spouses in mediation are protected by privilege, with a few necessary limitations, such as reporting threats of violence. Factual information given during mediation may be provided to a participant’s lawyer at the end of mediation if both parties agree to disclosure.
At the beginning of the mediation, the mediator explains the process to the participants. Discussions initially center around identifying the areas in which the participants have differences. After establishing the agenda, the mediator draws on professional skill and experience to encourage productive conversations between the participants, in which they navigate through the issues and negotiate mutually agreeable resolutions if possible.
During the process, the mediator makes certain that the participants fully consider the best interest of children and the consequences of any decision the participants reach relating to the children. The mediator may meet with children and other individuals, if the participants consent.
A mediator will end a mediation if the mediator concludes either that continuing the process will harm or prejudice a participant or affected children or that a participant’s lack of willingness to participate makes a reasonable agreement unlikely.
WHAT HAPPENS IF THE PARTICIPANTS REACH AN AGREEMENT ON ISSUES?
An agreement in divorce mediation is not binding on the participants or admissible in court unless it is put in writing, signed by both parties and their attorneys (if any), and approved by the court. At the end of mediation, the mediator provides a written summary of the understanding reached by the participants and will suggest that the participants seek legal counsel for assistance in reducing their mediation agreement to writing.
WHEN SHOULD SPOUSES CONSIDER DIVORCE MEDIATION?
Divorce mediation can be a valuable process, but it is not necessarily the best approach for all divorcing spouses. It may work well in circumstances where spouses are amicable and have some basic agreements but also outstanding differences to resolve.
Divorce mediation can also work in high conflict situations. Mediators have specific approaches and tools to use in resolving conflict between spouses, even when emotions run high. As a neutral outside party, the mediator works to reduce conflict without taking sides by facilitating discussion between the participants. The mediator provides support for both participants equally, while encouraging participants to focus on what course of action is best for them and their family.
Mediation is a flexible and adaptable format that spouses can use as a process for resolving outstanding issues without requiring involvement of a court or judge. As an alternative dispute resolution mechanism, it can save the expense and emotional strain of a protracted battle in court. If you think mediation may work in your divorce case, you should discuss the possibility with your lawyer or with a professional mediator.
