One of the central questions parents ask themselves when deciding to separate is whether and how to do so without harming the children and whether child mediation experts can help the process.
Let us start by saying that it is not possible to separate without it having any impact on the children at all; the home cultivates the psychological basis upon which children’s identity, values, and security are built. Parents—both father and mother—are their entire world, and the dissolution of the home and partnership will inevitably undermine the foundations established during childhood.
With this in mind, shared lives, especially when both sides escalate disputes and arguments, can turn the lives of both spouses, and sometimes the lives of the children, into a nightmare.
Once the decision to separate has been made, how to do it matters significantly. If one side takes the initiative and hires a lawyer without coordinating with the other side, they compel the other side to do the same, opening the door to a difficult and ugly divorce. The harder, longer, and uglier the separation process, the deeper and more profound the impact on the children.
Research shows that children who go through difficult divorces struggle further on in their lives with trust and relationships, even several years later, compared to children who experience a coordinated process based on mutual decision-making and consideration.
Not only does the separation process itself cause harm, but so does the communication afterward. The ability to communicate about children’s lives, education, hobbies, joys, and crises is critical to their mental health.
Therefore, navigating a divorce process with children involved without harming them is primarily a question of experience. In this matter, child mediation is a crucial process, even critical, to enable the separation process while creating a certain level of trust and maintaining communication, especially to avoid making the children victims of the situation.
Section 79 (c) of the Courts Law, 1984 regulates the authority of the mediation process.
Divorce processes involving children
Mediation during divorce proceedings is the most common and well-known approach. The basis for successful mediation is finding a common ground, which can be the children in divorcing couples. If the well-being of the children is important to both sides, a common ground can be found to determine how each individual will proceed without harming our dignity.
The mediator is a professional who uses various tactics to identify the boundaries, important issues for each party, and common ground to facilitate an agreed-upon solution.
One of the differences between mediation and a legal process is the agreement. The agreement starts with the choice of mediator and continues until a solution is reached. The parties can control what happens, and it is not imposed on them by an external authority, as a court would. The mediator does not choose “which side is right” as the court does; they guide towards a mutually agreed solution.
Initially, the mediator is expected to meet with each party individually to hear their side of the conflict and show empathy to allow for emotions to be expressed. The mediator should also convey a sense of openness while understanding the needs of each party, such as the desire for increased alimony due to economic concerns or insecurity after the partnership’s dissolution, and then understand their boundaries.
After the individual meetings, the mediator will try to find common ground between the parties to address their needs, rebuild trust, and enable communication.
For this, the parties need to cooperate, be open, act in good faith, and be willing to compromise. If this is not present, even the best mediator cannot achieve an agreed solution. In such situations, the court is the appropriate place.
It is important to know that mediation does not replace the court. If mediation fails, one can always turn to legal proceedings. This can be done after the start of legal proceedings, but the closer the mediation is to the time of the conflict, the higher its chances of success.
For example, in a legal proceeding where one party believes it benefits them or they may receive more this way, it can undermine good faith, willingness to compromise, and the ability to reach fair mediation.
This can also be done at the court’s initiative. For example, if the parties cannot agree on the mediator’s identity, the court can invoke Section 5 of the Court Regulations (Mediation), 1993, and appoint one from the mediator pool. However, the parties can approach any person and agree that they will be their mediator and are not obligated to the list of mediators published by the court administration.
An important part of child mediation is conveying messages to the children. Children may interpret the divorce as abandonment, so it’s crucial to emphasize that it is not their fault and is done with agreement and coordination between the parties, which will continue even after the process. This can help alleviate fear and minimize potential harm. It is important to convey to the children that despite the separation, their parents do not love them any less.
Child mediation also addresses this painful point and guides how and when to talk to the children about the issue. The guidance will continue even after the separation.
If the mediation process succeeds, a mediation agreement is reached, which is then brought to court to be given the force of a judgment.
Can a mediation agreement be canceled?
A mediation agreement given the force of a judgment by the court is a legal agreement in every sense. If one wishes to cancel it, they must approach the court that approved it and prove that it meets the cancellation grounds as permitted by law: obtained under undue pressure, not by free will or without full understanding of its content, concealment of information, bad faith, errors in the agreement that justify its cancellation, unreasonable exploitation, or illegal or extremely disrespectful demands.
Advantages of child mediation
- Significantly lower costs—several thousands compared to tens of thousands and more for a legal process
- Short and efficient process—compared to legal proceedings that can last for years
- Preventing psychological harm to children
- Maintaining future communication between parents
- Reaching an agreed solution
- Control over meeting schedules and the process itself
- Support even after reaching an agreed arrangement, for issues that arise over time and require solutions
- Mandatory mediation in every divorce process—the Family Dispute Settlement Law, 2014, requires every divorcing couple to attempt to settle their dispute through the court’s assistance units before filing a lawsuit. The mediation process is conducted by the court’s assistance unit at no cost, but the parties can decide on an external mediator as long as they undergo mediation. The law aims to reduce legal disputes and prefer ending conflicts through agreement and peace.
Divorce inevitably raises many emotions, alongside economic difficulties, personal challenges, adjusting to a new situation, and fear of the future. Therefore, finding a sensitive and experienced mediator who is also a lawyer specializing in family law and contracts is crucial to finding solutions with a comprehensive personal and family perspective. Our office specializes in family law and mediation, where you can find mediators who are experienced lawyers ready to meet with you, advise you, and answer any questions.
Feel free to contact us through the chat on the website or call: 055-9826594