Marriage breakdown – Separation and Divorce probably top the list of the most stressful of life events. This is a time when emotions run high and things are said, and done, in the heat of the moment. Commonly separating couples find that their lives are unbearable, their children are affected and their problems seem insurmountable. This is a time to reach out for help. Many couples will in the first instance seek counselling. If that fails to resolve their difficulties, and the wish to proceed to separation a mediator should be their next port of call.
“Most books and articles on separation and divorce are written based on the assumption that once a couple says they want a divorce that they are ready for divorce. It is our experience that therapists and divorce coaches, who have helped many people through this process believe that this is in fact not the case. Usually when couples begin the divorce process, either one but more often than not, neither is really ready for the divorce”. See the full article.
One of the first matters a Mediator will establish is whether in fact the couple is ready for the journey that is separation and divorce. This is important as it is a purposeful process, designed to deal with the issues involved in the unravelling of two lives, with all that entails.
Mediation is not Couples Counselling
Mediation will not attempt to put the marriage/partnership back together. It assists the parties in disentangling their lives so that the relationships are at the very least cordial and respectful, and all practical matters have been addressed.
The process also respects the needs of the family. It keeps any children of the family central to the process, includes the views of the children if appropriate, and allows time to explore all of the issues in a supportive yet neutral atmosphere. A good mediator never takes sides!
The Mediation Process for Divorcing and Separating Couples
The mediation process for separating couples is a very specific structured process. Nothing makes separation and divorce easy, but mediation with a well trained and practiced mediator acting as a as a neutral facilitator, helps a couple to negotiate the terms of their separation in a mutually satisfactory way.
The first step in this process is to meet with a mediator. Selecting a mediator is made a little easier by checking their credentials. The MII (Mediators Institute of Ireland) sets a really high standard for practicing mediators. The mediators accepted for registration are obliged to maintain their level of training, their practice and competence, and must prove this annually in order to maintain their membership.
Practiced mediators will seek to move at the pace of the clients. This can be a purposeful process, focusing on the issues which need to be resolved, in order to produce an agreement, covering all issues of concern to the parties to effect a peaceful separation or divorce. This usually take a minimum of four meetings, though six is more common. At each meeting one issue will be addressed.
Generally this is an assessment meeting. All of the parties use this meeting to ascertain if they can work together, and if mediation is the correct route for the parties. The mediator will be assessing the parties for ‘readiness’ to mediate. If there is any doubt the mediator will usually suggest couples counselling, or perhaps an alternative route to resolution. The story of conflict should emerge at this meeting, which will give the mediator an indication of the nature of the dispute, the style of negotiation used by the couple, and how the mediator will proceed. At the end of this session the couple will be given ‘homework’ around their finances, family budget.
This usually revolves around the major assets of the family. The ‘homework’ (budget) will be assessed to discover what monies are available to finance the future lives of the couple and the family. The family home is included in this, where each member of the family will live is discussed, and a plan put in place if possible. This tends to weave through the remainder of the process, it is never too clear cut.
If there are dependent children the arrangements for them will be thrashed out. Where they live and who they will primarily live with, how they will get to school and their activities etc. How the children will access the ‘absent’ parent will be discussed, and a plan put in place. How the family is funded will also be part of this among other things. The parents decide the mediator facilitates the discussion.
The agreement is beginning to form, the discussion range over all of the issues in order to narrow towards agreement. The inclusion of the children in the process is also discussed, how they are included, and to what end, the pros, cons of eliciting their thoughts are fully talked through.
Other issues include succession rights, pension rights, taxation etc. At this point it will be about assessing where the couple are in relation to their agreement, how close or how far away. Time can be important at this stage. Some couples can complete now, other couples take a little longer. Further meetings will be arranged to thrash out specifics, on any issue, as required.
An agreement worked out in mediation can and will be acted on in the courts. It is advisable to consult a family solicitor on points of law.
Including Children in the Mediation Process
This is a decision taken by the parents, based on the perceived maturity, or readiness of the children to participate. The objective is to elicit the thoughts, desires and feelings of the children in relation to the children’s own sense of what is going on in their family.
Children generally know more than we think they do – and with the right technique they are ready and willing to have their say. Parents need to be prepared to hear what they have to say. This can often be the turning point in the conflict. Parents in general hold the happiness of their children close to their hearts, they do not wish to cause them distress, and generally respond in a positive manner to the voice of their child.
The interview will be structured according to the age of the child.
The role of the mediator is to interview the child, to hear the child or children, and report to the parents what the child says, in the child’s own words, and with the permission of the child. In this instance the mediator is a reporter!
Final Mediation Sessions
The final mediation sessions are about putting the agreement together. At the end of the process the couple should have an agreement which can be legalised in a number of ways.
- In the form of a contract between the parties.
- By application to the courts for a rule of the court.
- Divorce if the legal requirements are satisfied.
It is advisable that any agreement is checked by the solicitor for each party. However an agreement worked out by the parties, with a neutral facilitator, should reflect the mutual needs and desires of both parties and their family. This takes precedence!
Courts.ie – Family Videos
(See courts.ie Family Law page)
Films for separating parents and their children
The Ombudsman for Children Office and the Courts Service have developed two short films for separating parents and their children about key aspects of family law proceedings in the District Court, and possible alternatives to court, in particular family mediation.
Basic Information for Parents
“Finding Your Way” offers parents basic information about the District family law courts and family mediation. It also offers advice and support services that may assist them with reaching agreement on important information issues affecting them and their children following separation. The film may also be a useful resource for professionals, for example, solicitors, family mediators and counsellors working with parents who have separated.
Introducing Young People to Family Law Courts
“You Are Not Alone” introduces young people (13 to 15 years) to the District family law courts, and family mediation and support services for parents who are separating. The film encourages young people to talk about how they are feeling and to get support if they need it. It may also support parents to talk with their children about steps they might be taking following separation and be a useful resource for professionals working with young people in these circumstances.