It doesn't take too many years as a litigation attorney to realise that particularly in the area of family law, there is a better way to settle differences between estranged spouses than a costly courtroom battle: "mediation'' is the buzzword among lawyers today.

Mediation is a process of assisted decision making. A mediator, who assists disputants to negotiate a solution to their conflict, is a well trained, impartial third party who has no stake in the outcome of the dispute. The mediator cannot therefore be a former advisor to one or other of the parties, such as an attorney or counsellor to one of the parties to a dispute. The primary focus of family mediation is to resolve disputes, such as child custody disagreements, or disputes over the distribution of income or property. Divorce can be highly acrimonious, and resulting courtroom debate over issues in dispute can cause great distress and anxiety to all those involved.

In mediation, estranged spouses will be able to successfully negotiate the terms of a separation agreement based on their best interests and needs, and the needs of their children, if they have any. Every member of the family will benefit from a lasting agreement which is perceived by every member of the family as being fair to all. Furthermore, mediation has considerable financial advantages over litigation. The fees of a mediator are generally split equally between the parties. Even in the most complex mediations involving the distribution of business assets and real estate and the distribution of income for the support of a spouse and the children, a settlement can be reached within five hours. Since the cost of a mediation may, in the year 2000, range between $200 to $275 an hour, shared by each of the parties, it is easy to see how cost effective mediation is. In litigation however, each party is liable to pay a minimum of several thousand dollars, and, depending on the value of the assets involved, each party could incur legal fees in excess of $30,000.

Mediation can help a lot Thus, in addition to reducing the emotional stresses of divorce and failed relationships, mediation also eases the financial burdens on the parties involved.

So how does mediation work? The choice of participating in mediation is entirely yours; anything that happens at the mediation is confidential and the outcome of the mediation is non-binding, until the parties have reached an agreement on the issues in dispute and have decided to record their agreement in writing and have it become legally binding. If the dispute settles at mediation, the disputing parties can draw up an agreement with the assistance of their respective lawyers, if they have their own representation at the mediation, or with the assistance of the mediator if no lawyers are present; the mediator will then advise the parties to take the mediated agreement out to the parties' attorneys for advice as to suitability for settlement.

If the dispute does not settle, legal proceedings can continue in the usual way; however, experience shows that even if the dispute does not settle at mediation, it will usually do so shortly afterwards because the parties have been motivated in mediation to achieve a settlement.

Where a family finds itself in an emergency crisis, with a mediator's help, temporary agreements can be reached to handle immediate concerns. It is not only much less costly, but less time consuming to find a mediator than it is to prepare court process and attend a court hearing. When the parties come together to mediate in this crisis, this same mediation session can be used to work out other issues needing a longer term solution.

Research in all other jurisdictions shows that flexibility in the performance of mediated agreements is higher than with imposed Court judgments -- with the result that there is less post-divorce litigation.

Mediation can also help divorced parents face problems that arise owing to a change in circumstances following an earlier court ordered decision. When post-divorce changes in parenting arrangements or maintenance support are needed, parents welcome having a safe, impartial environment to discuss these types of issues. A mediator does not make decisions for the parties but assists them in reaching an agreement within the limits of their realistic budgets.

When appropriate and desired, mediation may also involve people outside the immediate conflict, such as step-parents or grand-parents, uncles and aunts, etc.

The Barristers Code of Professional Conduct 1981 requires that a barrister should advise and encourage a client to settle a dispute whenever such a course appears to be advantageous for their client. Litigation attorneys specialising in the resolution of family issues realise how damaging the litigation process can be to the relationships of the estranged spouses, and to the relationships enjoyed by the children with their estranged parents. It is therefore an attorney's ethical responsibility to assist disputants to achieve a negotiated settlement with the assistance of a mediator where direct negotiation has failed to achieve settlement.

For all these reasons, the mediation of family disputes must always be "advantageous''. It cannot be argued that mediation would ever be disadvantageous, for the parties enter the process voluntarily and are free to walk away from the mediation at any time. Where settlement is reached, it is on account of the mediator providing a clear head, impartiality, encouragement and optimism that settlement is achievable; such focus propels the estranged spouses towards a decision which is satisfactory to both of them -- and to all members of the family involved.

Keren V. P. Lomas, LLB (Hons), FCIArb, President of Bercorp Ltd. -- offering Mediation, Arbitration and Consultancy Services -- is a fully qualified mediator with international certification in commercial and family mediation and in commercial arbitration. Bercorp Ltd. specialises in commercial mediation and arbitration, workplace disputes, divorce and family mediation, and consultancy services to local companies on such matters as employment contracts and management policy decisions affecting employer/employee relations.

LAWYERS LEG