Mediation is typically needed in the context of divorce and access to children. It is very different from commercial mediation because the parties typically have a significant emotional investment in the process and the subject matter. It can also involve wider family members and other negotiations, for example of grandparents' access to children.
The End of a Relationship
The two parties in a divorce or ending a relationship will invariably be in very different places in emotional terms. One will have left the other and will usually be feeling significant guilt, but will generally have made the decision to leave a relationship a significant period before, sometimes years before it actually happens.
The other person will only be coming to terms with sudden loss and grief which is comparable to the death of a close relative. There will often be complex personal interaction problems associated with issues of adultery and serious mistrust. These very strong feelings invariably generate anger, fear, irrational behaviour and a desire for revenge through whatever process might be available and this can result in the use of litigation to try to "hurt" the other party, whether financially, frequent harassing communications, restricting access to children or simply by being a constantly present irritation.
In some cases people become trapped in a cycle of grief for many years which makes it very difficult for them to move on, and they constantly move from grief to anger to revenge and round again to the start of the process. These are usually the most intractible cases and those which can benefit the most from some form of mediation and if necessary, counselling or therapy.
Mediation is not marriage guidance
Mediation is not about counselling or reconciliation with an ex-partner, apportioning blame or finding an explanation for past events. Nor is it a means by which a partner can regain "control" over someone who has moved on from a relationship. It is about enabling the parties to express their views about their future arrangements in an environment which is safe and where their views can be listened to and respected. The mediator (often more than one) will try to put comments in context by asking the other person to try to understand the other person's feelings and point of view. Separated and divorced couples often find it extremely difficult to communicate and their emotions can quickly get the better of them when in private. The mediators will try to break through the emotional barriers and concentrate on the areas where things need to be organised and agreed, such as residence and access issues. This process is particularly important and relevant in the context of the care of children of a divorcing couple.
The Court Process and Mediation
Unfortunately, unlike commercial mediation, ending a marriage requires a formal court process and at least one Advocate to represent the parties and prepare court papers, but when combined successfully with mediation it doesn't have to cost a significant amount to go through that process. For example a judicial separation by consent in the Royal Court should cost about £750 - £1000 but this is reliant on the couple agreeing, rather than arguing over what should be in the order. The benefit of mediation is to agree the terms under which separation will occur and who will retain what assets and who may have financial obligations to the other person. Importantly it can also be the place where child care and residence is decided. If you can agree the position with your ex partner, then the legal costs of a divorce can be kept low.
Unfortunately, some lack the emotional maturity to be pragmatic and realistic about the process of divorce. There are many examples of warring couples whose intensity of dislike is so high that they will spend all of their assets (to the detriment of their children) and even lose their houses in order to continue to fight through the courts. Often this occurs where one party simply refuses to disengage and commits themselves to being a thorn in the side. It is often extremely difficult to manage these situations. Mediation, unlike court, is not about winning and losing, it is about trying to reach an acceptable compromise for all concerned.
Mediation as a protection from controlling,
As with any type of mediation, the parties are not bound to reach an agreement. Things can fail when the mediation occurs too soon or one of the parties remains intransigent and unreasonable. Most cases resolve themselves some time after divorce, as the lapse of time allows tempers and emotions to wane. However, divorce and separation is a very stressful event and people are prone to react in unpredictable and illogical ways.
Unfortunately, there remain some high-conflict cases where one of the adults' behaviour remains consistently obsessive and hostile and this may continue in cycles for many years. This can be particularly difficult to deal with in cases where there is shared residence of children and given that the Channel Islands are relatively small. In this type of case, the angry or hostile individual may try to use the suggestion of mediation as a means of interference or staying in direct contact with an ex-partner and making their new life deliberately difficult.
They may also use litigation for the same purpose, or as means of trying to assert dominance or control over an ex-partner.
Counselling rather than mediation, or a careful combination of the two may be more appropriate for individuals with these characteristics, in order to address their grief and anger issues and encourage them to move on. However, where such problems are serious and persistent or dangerous, ultimately only the courts can curb such behaviour.
If you can focus on the issues which need to be resolved then mediation can be a very cost effective way of resolving divorce and family issues at minimum cost. Typical costs range from £150 per hour but resolving contentious issues can save a great deal of lawyer and court time and remove the focus from winning and losing to problem solving. Whilst it may not feel like it at the time, this is in both parties' best interests and particularly in the best interests of the children of a broken relationship.