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I would like to express my appreciation to John and Sue for enriching our lives and way of thinking with the mediation course!

What is Mediation?

Mediation involves families in conflict working out arrangements for themselves and their children with the help of neutral and skilled mediators. The aim of mediation is to reach an agreement which is mutually acceptable to the parties within the broad range of that which a court would be likely to approve.

Ten Basic Questions about Mediation

John O'Leary

Director, Walkers Inc Attorneys

& member of Family Mediators' Association of the Cape.

1 - What is mediation?

Mediation is a method of resolving disputes through the intervention of an impartial mediator. The mediator assists the parties in conflict to negotiate a settlement of their dispute. The mediator does not represent or counsel either of the parties, but does manage their negotiations. The negotiations in the mediation process are off the record, without prejudice to the parties' legal rights, and privileged by virtue of being a bona fide attempt to resolve the dispute.

2 - Who are the mediators?

FAMAC mediators are drawn mainly from the legal and mental health care professions in the Western Cape. They are trained and accredited and are expected to practice according to the code found elsewhere on this website.

3 - Which disputes are suitable for mediation?

Mediation works best when the parties in dispute will have some form of ongoing relationship in the future, even after their immediate disputes are resolved. They often need the help of a mediator to help them structure their communication about ongoing conflict. Divorcing couples with children are a good example of this situation, and indeed divorce mediation is well established and effective.

4 - Which disputes are not suitable for mediation?

It is generally not advisable to mediate conflicts where there is current substance abuse which affects the capacity of one or both of the parties to negotiate. Mediation is also not indicated where physical violence has occurred to such an extent that it creates an unmanageable power imbalance between the parties. There are other situations where mediation may be inadvisable, but these should be assessed at the point where a mediation referral is made.

5 - What can mediation add to direct negotiation?

Often it is very difficult for people to negotiate directly and effectively with people they are in dispute with. Their conflict is such that any communication triggers old conflict cycles, and the simplest discussion can quickly spiral into a major clash. Mediation can help to avoid this by preventing recycling of old conflict and focussing on the dispute and exploring options for dealing with the future differently. Mediators are well-placed to help parties test whether proposals are realistic and workable.

6 - What makes a good mediator?

A capacity to listen, patience and an ability to ask questions which open up space for dispute resolution. Good mediators also clearly manage the mediation process with impartiality and confidentiality. Good mediators have had recognised training and are willing to keep updating their skills.

7 - How successful is mediation compared to alternatives?

Many mediators have the experience that all mediations result in a measure of improvement in the way the parties manage their disputes. However, it is obvious that not all mediations will result in a final resolution of the dispute, for a variety of reasons. Mediation is usually experienced as a shorter and more cost effective means of resolving disputes than alternatives such as litigation or failing to take any action to address the conflict. Mediation is also very successful as a model demonstrating to parties in dispute how to constructively address their conflict.

8 - How should I prepare for mediation?

If you are about to go into family mediation to settle a divorce, for example, it is important to get proper advice before going into mediation. It is wise to get legal advice on the legal aspects, and don't be hesitant to ask your lawyer if s/he can guarantee the success of any approach s/he recommends. You may also need advice from a counsellor regarding emotional issues that arise. The article “Preparing for your mediation” found under “Resources” on this website is worth reading as part of your preparation. Make notes of the issues you want to raise in mediation, and keep space in the margins of your own notes for ideas about related issues and proposals which could be explored.

9 - Do I need a lawyer or counsellor if I am using mediation?

It is advisable that you do have a lawyer to advise you and to review settlement proposals towards the end of the mediation. A lawyer will also be needed to take the settlement through the court process as your mediator cannot do this because of the impartiality rule in mediation. Similarly, it is good to have a counsellor to do therapeutic work with you as the process unfolds.

10 - Can mediators help after divorce?

Mediation itself can of course be used after divorce, and many divorce settlement agreements provide for this. In this situation the mediator acts in the ways described above and does not have the power to make decisions on behalf of the parties, who take responsibility for the outcome of the process themselves. The mediator takes responsibility for managing the process.

More and more frequently mediators are called upon to facilitate post-divorce disputes. They use their mediation skills in these facilitations, but the process differs from mediation in that the divorce court order usually provides that the facilitator shall have the power to make decisions relating to the outcome of the dispute if the parties cannot reach agreement through the facilitation. It is very important to clarify the role of the facilitator and what powers s/he will have before the process starts.

Family Mediators' Association of the Cape