Mediation is a collective term for resolving disputes through mutual agreement. This can be part of a divorce process, inheritance disputes, and essentially any conflict involving two or more parties. The mediator is a professional serving as a neutral, agreed-upon third party. Their role is to propose solutions acceptable to all parties to avoid costly and lengthy legal proceedings that can cause significant distress.
For example, the final stage in the process of divorce is a divorce agreement approved by both partners, concerning property, children, and future relations. A good mediator can identify each party’s needs, create a respectful solution, and foresee future scenarios, offering sustainable solutions even when the current situation changes.
Mediation is regulated under Section 79C of the Courts Law, 1984, and the Courts (Mediation) Regulations, 1993.
Nowadays, the field is flooded with mediators of various types and certifications. It is advisable to ensure that the mediator is also a lawyer specializing in family law and contracts, who can offer comprehensive personal and legal solutions.
Family Mediation Process
While divorce mediation is the most common type of family mediation, it is not the only one. Mediation can also pertain to inheritance disputes, conflicts between parents and children or siblings, prenuptial agreements, and more. In family conflicts, there is no final arrangement such as what one may find in a divorce agreement, making the mediation more complex, as it must accommodate everyone’s feelings and needs.
A key principle for successful mediation is the willingness and cooperation of all parties involved, including a readiness to compromise and work with the other party. If this willingness is absent, mediation is futile, and the matter must go to court. Even the best and most experienced mediator cannot reach agreements without the parties’ cooperation. If there is willingness, the mediator’s role is to find the middle ground between the parties.
The law mandates resolving conflicts before going to court: The Law for the Settlement of Family Disputes, 2014, effective from 2016, requires every divorcing couple to attempt to settle their dispute in the Family Court Assistance Units before filing a lawsuit in the Family Court. The law aims to reduce legal disputes and prefer resolving conflicts through agreement and peace. This process is provided free of charge, subject to eligibility conditions, and parties can opt for private mediation instead, provided this is demonstrated.
While most people are familiar with the option of mediation during a divorce, they are less aware of its benefits in various other family crises. For example, when parents become dependent on others, and their children, who previously relied on them, must invest their time and energy into their parents’ wellbeing, alongside managing their own families. How is the burden divided in terms of time, effort, and finances among those involved? How do siblings reach a consensus on caring for their parents, medical issues, selling a house, and so on? A mediator can address all these issues.
Mediation is also suitable for conflicts between parents and their children, such as an adult child or a divorced child who refuses to leave the house, rebels against authority, and cultivates a challenging environment.
Another common and well-known family dispute relates to inheritance. One party may believe that they are entitled to a specific share of the inheritance, especially if a clause in the will is unclear, or if one sibling claims fraud. If there is property to be sold in a coordinated manner, or a valuable personal item that one child does not want to sell, and so on, a mediator is preferable to court proceedings and mutual lawsuits in terms of time, emotional distress, and cost.
Advantages of Mediation:
- The mediation process is generally short, especially compared to legal proceedings
- It is less expensive
- Meeting schedules are set according to the parties’ preferences, unlike court schedules where parties must adapt
- Solutions are reached by agreement, reducing the likelihood of objections and non-compliance
- It fosters respectful dialogue and communication between conflicting parties, unlike a court decision that ultimately sides with one party
- If the parties cannot reach an understanding, they can always turn to the court, but it is advisable to exhaust mediation first
- The mediation process is private and governed by confidentiality agreements
- The parties have full control over the nature and details of the agreement, without a third party imposing terms
- Continued support after reaching an agreement, addressing issues that arise over time and require solutions
How Does Family Mediation Work?
The mediator meets with the parties separately and together, understands each one’s needs, and tries to connect them. Mediation allows for finding dialogue and communication, even through a third party. The mediator helps with practical aspects of the agreement and the emotional aspects related to the agreement, whether it is a divorce agreement, dilemmas about when and how to inform the children of separation, personal feelings of regret, wasted time, failure, and difficult feelings between the spouses resulting from the end of the marriage.
The mediator will form an agreement with a forward-looking perspective. Once the parties reach mutual agreements and sign the agreement, it is submitted for court approval, avoiding a lengthy, costly, and painful legal process that often leads to feelings of revenge and other difficult emotions that only deepen the crisis for all involved.
Can a Mediation Agreement Be Canceled?
To be binding, a mediation agreement must be approved by the court. To cancel it, one must appeal to the court that approved it and prove that it meets the cancellation grounds permitted by law: coerced agreement, lack of free will or full understanding of its content, withholding information, bad faith, mistakes in the agreement leading to its cancellation, unreasonable discrimination, or extreme illegal or disrespectful demands.
Family Business Mediation
A separate chapter in family dispute mediation involves disagreements regarding family business decisions, which can naturally lead to conflicts among family members involved. This can cause irreparable damage to the business as well as to family relationships.
Common conflicts in a family business typically include disagreements regarding:
- A significant business decision
- Introducing a new family member, spouse, or child into the business
- Delegation of assets, especially to family members who do not manage or work in the business
- Passing on business control to the next generation
Mediation is crucial for family businesses to prevent harm to the business and to maintain healthy communication among family members, ensuring both the business’s continuity and family relations.
Reaching a solution quickly is vital for the business, as delaying decisions can seriously harm or paralyze the business. Going to court can damage trust and communication among family members managing the business, affecting its management and profitability. Court proceedings can take months or even years.
Family disputes naturally bring strong emotions, alongside financial difficulties, personal challenges, adapting to new situations, and preventing future problems. Therefore, it is important to find a sensitive and experienced mediator who is also a lawyer specializing in family law and contracts, to provide comprehensive personal and family solutions.
Our firm specializes in family law and mediation. You can find experienced lawyer-mediators who would be happy to meet with you, advise you, and answer any questions.
Feel free to contact us via the chat on the website or call: 055-9826594.