Let me first explain what is mediation and what is facilitation.
Mediation is a process in which an impartial mediator helps the parties to negotiate their issues and avoid litigation. The mediator aims to find an amicable solution that all parties can live with as opposed to a court case that can destroy many relationships and is very expensive. Mediation is far less costly than litigation since the parties share the costs of the mediator instead of each party paying separate lawyer fees. It is strictly confidential and ensures that parties have an opportunity to discuss issues freely.
Facilitation clauses are found in most divorce orders or parenting plans. This clause states that, if there is any dispute between the parents in how they have contact with their children or cannot communicate easily to make decisions relating to the children (such as enrolling them in a new school or travelling overseas), then they will appoint a facilitator. The facilitator will hear each side of the problem and make a decision in the best interests of the children.
Maintenance payable to the children can also be resolved in this manner. This saves the parents having to take time off work and attend the Maintenance Court.
Facilitators have authority over your parenting rights and it is vital to appoint the right facilitator.
Some of the differences should already be clear from the above explanation. The biggest difference is that the mediator never makes decisions in your negotiations, whereas the facilitator often has to issue a directive, deciding on an issue. The mediator helps the parties to make their own decisions but the facilitator has to issue a directive precisely because parties cannot agree on any decision jointly.
Another big difference is that the parties remain in control of the outcome when they mediate, not the mediator. The mediator may control the process and the parties’ behaviour, but not the final decisions. The final decisions are made by the mediating parties.
In contrast, if the parties cannot resolve their dispute, then the facilitator has to make the final decision. This decision can be far reaching, such as with whom the children should live and whether the children may go overseas to live.
Mediation is usually voluntary. The parties realise that it’s foolish to spend their money on litigation and they decide to ask a third party, the mediator, to help them in their divorce or other negotiations. However, if one of the parties refuses to attend mediation, then there is nothing that the other party can do to compel him or her.
On the other hand, a court order appoints a facilitator and when the parties cannot reach agreement, they have no option but to participate in the facilitation process.
The team at Neilsons Attorneys provide both mediation and facilitation services.
Contact us on tel: 021 557 8552.