DO MEDIATORS HELP COUPLES TO BREAK UP?
A reply by Ganna Garo, family mediator of the LiMU Social project, Attorney at Law, partner at Garo and Partners Law Firm:
“Family conflicts are often very different. Someone has already brought action before court, while others still consider so, thinking day and night of the best way to proceed. In any case, the term “to break up” or to “dissolve a marriage” is wider, than simply to “put a stamp in one’s passport” about dissolusion of marriage. Being in the whirpool of a confict, a couple can not assess the situation rationally. Especially, if there are children and when each of the spouses’ goal, conscientiously or unconscientiously, is to heart each other. In doing so, one of the spouses, as a rule, defends him/herself, thus being in the state of emotion. There is not trust, but there are quarrels, swearing, actions on purpose against each other, all of the above only strengthens the unbearable situation and a desire to disappear, to push the situation out of one’s head.
Mediator is a specialist, who knows how to act in other peoples’ confict and non-judgementally, with the help of special techniques of communication and skills, helps to restore the fragments of trusting communication between the parties. He will hear and bring to the other party the needs and true interests of each other. Which implies - gradually build a special strong bridge, which each side can safely cross for the purpose of building the new life.
Therefore, indeed, the mediators do help the parties to break up only, if the parties come to the mediator for this purpose. Through mediation, each spouse understands all the issues that need to be resolved in connection with divorce. Everyone will be ready to find solutions that are suitable for him, for the other party, and willing to volunteerly execute them even without a court decision. After this all the court and legal disputes will be resolved rapidly and confortably for each party”.
ARE ALL MEDIATION AGREEMENTS LEGALLY BINDING TO THE PARTIES?
A reply by Julia Dubenko – family mediator of the LiMU Social project, family law Attorney replies:
«Having seventeen years of experience in legal practice and three years of in-depth work in the field of family law, I came to the conclusion that the most promising and rational way out of family disputes is FAMILY MEDIATION. Despite the fact that in our country this concept is rather new, today more and more couples choose this alternative method of conflict resolution. As a member of the League of Mediators of Ukraine, I want to answer one of the frequently asked questions: Are agreements reached in the process of mediation legally binding?
I would like to begin with underlining that a mediation agreement (a document that the parties countersign) is a consequence of settling a dispute with the help of a qualified neutral agent – mediator. In this document, the parties formulate agreements that they reach voluntarily, protecting, first of all, their rights and interests, taking into account the rights and interests of the other party, and if the couple has a child - again, first of all, his needs and interests. A mediation agreement is a civil law agreement and is executed voluntary and diligently, so that each party becomes personally interested in fulfilling the conditions foreseen in the agreement in order for the other party to fulfill his/her obligations. A sufficiently high level of voluntary execution of such agreements is caused by nature and principles of the process of decision-making by the parties. Mediation allows the parties, on the basis of equality of rights, to find such ways of getting out of a difficult situation that maximally reflects their needs and allows them to meet their interests.
Thus, if we consider the mediation agreement in the context of the personal interest of the parties in honest execution of its terms, then the necessity of any other legal conclusion of the parties' agreements simply disappears.
However, if the parties do have such a need, the parties' agreements may be validated in the form of an amicable settlement in court (in the case of litigation taking place simultaneously with the mediation) and laid out in the court decision. I want to emphasize that in connection with the specifics of mediation, the parties in the process of resolving the dispute can agree on any issues, including those that are beyond the requirements made before a court. In addition, a mediation agreement (as well as any bargain) may be certified by a notary with countersigning in his office.
If I receive questions about legal binding from the very beginning in such form as: “What is the consequence, if I do not execute it?”, so I do have a feeling the a person asking is definitely not fit for mediation. It’s your right. It’s your choice. What matters most of all, is you will to come to an agreement, as for us – we will help you”.
3. HOW MUCH TIME DOES A MEDIATION TAKE? WILL ONE MEETING BE ENOUGH?
A reply by Svitlana Stadnyk - family mediator of the LiMU Social project, business mediator:
«Family mediation begins with preliminary sessions with each of the parties. In one or two hours, the client and the mediator come to realize if mediation is the best instrument for resolving this specific conflict, and which topics should firstly be adressed at a joint session. The further process of mediation moves at the speed with which participants are ready to work. Most often, the parties require between three to six joint sessions. The period between sessions, as a rule, lasts about a week. It happens so that in the intervals between the meetings, the participants had a chance to test the previous arrangements for reality. For example, if the new format for meetings of a child with a parent who resides separately is accepable for all. Settlement of a family conflict in one meeting is an exception, but it also can happen».
DO MEDIATORS TRY TO BRING THE COUPLES TOGETHER?
A reply by Ganna Garo, family mediator of the LiMU Social project, Attorney at Law, partner at Garo and Partners Law Firm replies:
«What an interesting question! One of the principles of mediation is the neutrality of a mediator, meaning no assessment of each of the parties’ actions that led to the conflict. What is truely important for a mediator is the feelings of participants, their expressing of deep interests that always hide behind the proclaimed positions in the family disputes. Through participation in the mediation process, each party enchantsly reveals it’s own interests and desires of which he/she did not even think, because of being occupied with a "protective response" to the actions and words of the other spouse. Moreoever, the couple begins to hear the needs of the other party, so it happens sometimes that the question for discussion with which they came to mediation is no longer important, and other, more in-depth topics for discussion are raised.
The above leads to the fact that the couple calmly emerges from the conflict and can directly, without stress, negotiate on burning issues. The opposite might also happen sometimes, when the couple is mature, their union is renewed and becomes even stronger. And that's awesome.
Therefore, the answer will be the following: the reconciliation of the parties is clearly not the direct task of a mediator, but in fact, as a result of mediation, the parties reconcile exactly from those conflicting issues with which they came to the mediator.
HOW IS THE QUESTION ABOUT KIDS IS USUALLY RESOLVED? DO THEY PARTICIPATE IN MEDIATION?
A reply by Svitlana Stadnyk - family mediator of the LiMU Social project, business mediator:
«A family mediator, being neutral with respect to the parties, is truely a child's attorney. The mediator brings information about the needs of small children to the parents' negotiations. And with children above five years of age, with the obligatory consent of both parents, an individual meeting can be held. This meeting is also confidential, as is the mediation of parents. If the child asks not to pass on any information to the parents, the mediator will fulfill his request. From my own experience, mediation with children is often a turning point in the process of resolving family conflicts. As a rule, children take part only in an individual meeting with the mediator. However, if the adolescent and family want to speak at one table, the mediator encourages such a format. The experience of joint reaching of agreements can be valuable to the family».