MOVING BEYOND POSITIONS AND INTERESTS ... TO FEARS

 Cocktail talk around the issue of mediation invariably gives rise to someone sharing about how much they hate conflict. And how they would much rather run away from a potential explosive situation then deal with it head on.  Statements such as these are often met with nods of widespread approval. In many respects this peace-at-all costs stance adopted so casually by many is at face value however questionable ... especially when one meets up with these vociferous proponents of peace at some later stage in the corridors of the court-house and to find out about the long drawn out civil dispute they are engaged in against a third party.

The question that has plagued me the past while is that of – if the dislike of conflict is an almost universal issue then why is there so much conflict around us? and what is it that keeps people entrenched in cycles of conflict?

One look at the morning news is enough to lead one to the conclusion that the World is in a mess and that in reality, there are clearly too few people in the world who hate conflict enough to stop its occurrence.  Moral issues, religious issues, cultural issues, territorial integrity and plain old personal affront seem to be the seeds from which a harvest of retribution is often reaped much to the distress of the vulnerable and innocent.

The focus of this article is not to air opinion on politics, policy or World issues (which in many respects are inextricably linked to the conflict triggers noted above) but rather to look critically at conflict in the home and in one’s working environment and to assess, again rather critically, whether we are just paying lip-service for a generalised dislike of conflict, when in fact we are quite eager to roll-up our sleeves when our own issues rise to the surface.

No doubt the experts on this issue would have a field day populating any such discussion with lengthy “scientific” writings on the why’s and wherefore’s of conflict which in turn has the potential to cause more conflict on conflict itself but in a nutshell, when one gets down to grassroots on this issue – Conflict turns on the pivot of fear.

People fight because they are afraid.  Fear is the motivator

Fear ... of emotional death

Fear ... of financial devastation  

Fear ... of change

Fear ... of loss of personal integrity, reputation and standing.

The list goes on ...

People remain in conflict – despite their potential abhorrence of conflict – not because they are driven to maintain the status quo but because of the overriding prevalence of such fears.  Within the legal process this is often compounded by the fear of loss of face in the event of being the first to extend an olive branch of peace towards a belligerent adversary.

In inter-personal mediation it is of critical importance that mediators understand the underlying issue preventing conflict resolution and assist clients in moving from positions to needs and beyond. Allowing clients the privilege of uninterrupted thought and verbalization during this process is an essential element in uncovering the deeper layers of emotional content driving conflict and keeping people enmeshed therein.

Clearly this process is not applicable for all mediation matters but certainly its impact in inter-personal and family mediations cannot be under-estimated, particularly in the transformative mediation model. Fear is undoubtedly one of the most primal and hidden of the emotions experienced by mankind – sensitive handling of this issue within the mediation process has the greatest potential for relationship reconciliation and mutually beneficial outcomes, even in the eventuality of divorce, separation or termination of future working relationship.   This is certainly a laudable and achievable goal to work towards.

THE POWER OF THE PAUSE

 A good friend recently relayed to me a story about a meeting that started off on a wrong footing and ended with the client storming off .... listening to the story it was clear that the client was in the wrong but the story made me wonder about whether there was something my friend could have done to avert the ensuing situation from taking place without there being any loss of face for either the client or my friend.

Our first response to a verbal assault - whether valid or not - is normally to counter-respond with heightened tone, aggressive "in your face" body language and then one's own verbal barrage in self-defence of what has just been said.

The value of the momentary pause between hearing an attack and reacting to it should never be under-estimated. Not only does the momentary pause give one an opportunity to take control of oneself in the situation, but a pause of silence also give the other person an opportunity to contemplate what they have just said and to either retract, soften the words or explain themselves further if necessary.

The old adage of "it takes two to tango" is no where more applicable then in the scenario of conflict. By engaging in the pause one is in fact allowing oneself the choice to decide on whether to step into or away from the issue of conflict. Not every verbal assault or harsh and pointed comment needs or should be dignified with a response, but every person should in fact be given the opportunity to clarify what they are saying and where they are coming from. It is at this juncture that a simple question or statement requesting clarity of what was just said  such as "I beg your pardon ?" or "Please could you explain what you are saying"  is often the mercy stroke ending what could be a unfortunate and avoidable breakdown of relations. 

It goes without saying that hindsight is a wonderful thing giving us 20/20 vision. In my friend's case, the client is gone and it is unlikely that he will ever come back. All is however not lost. Turning the perfection of hindsight into practical insight and applying the power of the pause ... and then the question to those potentially explosive situations will go a long way in maintaining good relations with even the most difficult and demanding of people.

MAKING ONLINE MEDIATION WORK FOR YOU

As a rule of practice a Family Mediation is conducted in person with both Parties being present in the same room as the Mediator. This is no doubt the ideal way for a mediation to operate and the most utilized way of conducting a mediation. What is not always public knowledge is that a Family Mediation can in certain circumstances where necessity dictates take place via Telephone Conferencing or Video-Conferencing. This is particularly relevant in matters involving international parenting issues where the parents reside in different countries and/or are not able for whatsoever reason to be in the same location for purposes of the mediation.

 

Skype or Google Talk Video-Conferencing is generally utilised for the Online Mediation process.  Parties to the mediation accordingly need to have access to a computer and a fast internet connection.

In order to ensure the smooth running of the mediation session in cyber-space, Parties are urged to -

• Timeously forward to the Mediator the Video-Conferencing address that they will use for the Mediation ;
• Make use of headsets ;
• Update their Skype or GoogleTalk  running program to obtain optimal internet speed ; and
• Ensure that all cellphones, email notifications and Skype/Google notifications are turned off.

In line with the principle of Confidentiality and without prejudice settlement discussions Parties will be required to confirm that they are aware that the Mediation session may not be recorded by either of them for whatsoever reason and additionally that third parties will not be physically present or with hearing distance of either of the Parties while the Mediation is taking place (unless this has been specifically agreed upon to the contrary by the Parties to the Mediation).

It is imperative that the Family Mediation process does not take place in the presence of any child/children. The Party who has the care of the child/children will be required to confirm that arrangements have been made for the child/ children and that no child will be present during a Mediation session. The potential negative ramifications of a child running into a room where the Mediation is taking place alternatively overhearing the contents of the Parties discussions concerning them are far too great to outweigh a relaxation of this rule. Should it become necessary for a parent to talk to a child over Skype or Google Talk arrangements can be made for this to happen at a later stage outside of the formal mediation process.

An experienced Online Mediator will always have a series of backup plans available to fall back on should there be system failure, should the internet connection become too slow due to video-broadcasting, or should there be frequent interruptions and echoes on the line. With the new technology available these back-up plans are fortunately seldomly utilized.

In essence although face-to-face contact during the Family Mediation process permits greater scope for impromptu response and resolution, separation across continents or even different parts of a country should not act as a deterrent against a Family Mediation process taking place when and if this is the best route for disputing parties to embark upon in order to resolve their disputes. 

PARENTING PLANS FOR DIVORCING OR SEPARATED PARENTS

Sections 33 and 34 of the Children's Act 38 of 2005 makes provision for the parents of a child to stipulate in writing the parenting and living arrangements that will be followed in respect of that child. 

 

WHAT IS A PARENTING PLAN ?

Essentially a Parenting Plan is a written document entered into between co-holders of parental responsibilities and rights providing guideline on the raising of the child as well as on the allocation of parental responsibilities and rights concerning that child.

WHAT IS THE AIM OF A PARENTING PLAN ?

The primary aim of a Parenting Plan is to provide certainty and predictability for the child as well as for the co-holders of responsibilities and rights as to how things will work in the future insofar as that child’s life and living arrangements are concerned. In order to be effective the Parenting Plan needs to be tailored according to the unique needs and requirements of that specific family unit - bearing in mind that each child forming part of that unit may need to have their own set of specific requirements taken into account in the Parenting Plan.

WHAT ARE THE IMPORTANT CONSIDERATIONS FOR A PARENTING PLAN ?

When drafting a Parenting Plan specificity is to be preferred over vagueness so as to ensure increased security for the child and decreased possibility of future parental discord. By same token though, sufficient flexibility should be permitted within the Plan to accommodate unforeseen situations that may occur from time to time.

Having regard to the constitutional imperative of best interests of the child and the need for both predictability and flexibility within the Plan, co-holders of Parental Responsibilities and Rights would be wise when drawing up the Parenting Plan to gain the input of a relevant professional be it a Psychologist, Social Worker or Family Mediator.

WHAT ARE THE AREAS THAT SHOULD BE COVERED IN A PARENTING PLAN ?

The Children's Act does not stipulate the areas that would need to be covered in a Parenting Plan leaving this to the discretion of the parents. From a practical perspective though the areas that should ideally be dealt with in the Plan – bearing in mind that each family’s Parenting Plan will be distinct based on their own specific needs – include the following:

• The General Parenting Values That Are Important To The Parents In The Raising Of Their Children

• Parenting Styles Including the Mode of Communication that the Parents would like to have put in place in respect of their Communication with the Children

• The Place Of Residence Of The Child in other words whether there will be a Primary or Principal Place of Residence for the child or whether Residence will be Shared on a 50/50 basis

• The Child’s Contact With The Non-Residence Parent. The Inclusion of a Flexibility Clause for Contact on Other Occasions on Timeous Notice is always advisable.

• The Child’s Contact With Its Extended Family And With Significant Third Parties

• General Transportation Issues For Contact Periods And General Day-To-Day School and Extramural Transportation Needs

• The Mode Of Communication Between The Parents in respect of the Day-to-Day Life of the Child Including whether or not Joint Family-Meetings will be required herefor , The Sharing of School Reports & School Photographs; The Sharing of Information Concerning the extra-Curricular And Recreational Activities of the Child

• The Process of Decision-Making In Respect of the Child Including A Delineation Of Those Issues Requiring Joint-Decision-Making

• The Mode Of Future Dispute Resolution In the Event of Deadlock Over a Parenting Issue or a Provision Of The Parenting Plan

• The Process To Be Followed In The Event Of A Medical Emergency Arising

• Child-Minding Options and The Process To Be Followed For The Screening and Appointment Of Potential Child-Minders. Additionally whether the Parents Will be Given the Option of First Refusal for Childminding on a Specific Occasion Before a Third Party is Approached herein.

• The Procedure To Be Followed For Setting Up And Attending Meetings In Respect Of The Child With Schools & Other Significant Third Parties

• The Process To Be Followed For the Introduction Of The Child To Persons With Whom The Other Parent May Be Entering Into A Romantic Relationship

• Financial Support Of The Child including Medical, Educational and day-to-Day Support

• The Date For Future Review Of The Parenting Plan and whether the Plan will be Reviewed on a six-monthly or annual basis (This depending upon the age and developmental needs of the child). 

Most parents worry about the impact that a divorce or a separation will  have on the emotional well-being of the child. Research shows that for most children, this time is fraught with insecurity regarding their future and in respect of their concerns as to how their living arrangements as well as their contact with the other parent will be affected by the divorce or separation. It goes without saying that the stresses of divorce and separation on a child can be ameliorated by a well defined Plan that makes adequate provision for the future.

 For More Information on Parenting Plans Please visit www.traceyleighwessels.com

ALLEVIATING THE EFFECTS OF DIVORCE ON CHILDREN

The breakdown of a marriage or a relationship is always a traumatic experience for all concerned. The trauma of the breakdown may be particularly acute for children, in particular where the demise of their parents’ relationship has been characterized by heightened emotions, high levels of acrimony and an underlying instability and uncertainty as to the future.

It is well documented that children require additional support and assistance over this time to assist them in dealing with their own grief over the break down of the relationship and in coming to terms with possible new family structures and relationships that may have to be put in place. 

While certainty and stability are among the essential childhood requirements for optimal emotional and psychological health and development for all growing children, these two factors assume critical importance for the child who is subject to the unfortunate breakdown of his or her parents’ relationship.

Parents undoubtedly have the greatest influence in mitigating against the deleterious effects of the breakdown of a relationship by ensuring that 

• the child’s environment remains free of any parental alienation and/or manipulations
• the child is neither pulled into nor forced to witness any potential mud-slinging games between the parents or their extended family 
• the child is permitted to have and enjoy on-going contact and association with the non-residence parent
• factors such as financial security, constancy in parenting and discipline, routine stability, and certainty as to the myriad of day-to-day activities undertaken by the child remains constant and unchanging unless alteration is required thereto in the best interests of the child.

In order to reduce parental conflict and alleviate the stress caused to children through circumstance-instability, South Africa legislation through the provision of the Children’s Act 38 of 2005 which came into operation in 2010 encourages parents to come together and work out a written Parenting Plan regulating the incidence and exercise of their respective rights and responsibilities in respect of their children. 

Parents who are in conflict over their respective rights viz the children and parents who are experiencing difficulty in exercising their rights and responsibilities over the children are mandated to not only endeavour to obtain such plan but to do so with the assistance of a Family Advocate, Psychologist, Social Worker or suitably qualified Mediator prior to their approaching the Court for intervention therein.

Essentially the aim of the Parenting Plan is to regulate the exercise of parental responsibilities and rights as aforesaid, to clarify contact and other arrangements impacting on the children, to provide certainty for the parents and children alike regarding critical issues such as parenting styles, living arrangements, third parties’ involvement in the children’s lives, extended family members’ roles,  special occasions arrangements such as each child’s birthday, Mother’s Day, Father’s day, and any significant family days and also to provide certainty as to the financial arrangements that would be put in place for the children’s medical, educational and general day to day financial requirements.

The primary advantage of the Parenting Plan is that if the contents thereof is deemed by the Parents to be mutually beneficially viz parent-and-parent and parent-and-child, the children can look forward to an opportunity to grow up in a stable home environment albeit a single-parent home and to develop independent and meaningful relationships with both their parents the latter of  which is  in essence what parents in a marriage situation would ultimately deem in the best interest of their children.

For more information on Parenting Plans and the Legislative Requirements for Parenting Plans and Parental Responsibilities and Rights Agreements in terms of the South African legislation, please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com

HOW TO COMMUNICATE TO RESOLVE CONFLICT

THE POWER OF A SINCERE APOLOGY

Sitting in on a couple’s dispute is a privilege reserved for a few.  During a course of a mediation session the Mediator is not only confronted with the issues in dispute from both parties’ individual perspectives but the Mediator also has the opportunity to witness whether the dispute unfolds towards resolution or deadlock.   

As a third party witness to dispute development and the various mechanisms people use to eradicate a dispute, one key factor that has never ceased to amaze me is how the offering of a sincere and timeous apology to a wronged party has the potential to not only stop the dispute in its tracks but also move the parties towards an expedited process of mutual healing.   

Random and insincere apologies understandably exacerbate a dispute causing positions to be further entrenched thereby moving the dispute closer towards deadlock. The unfortunate reality hereof is that entrenched positions and deadlock on issues of rights and responsibilities often acquire an explosive life of their own necessitating third party adjudication and/or legal intervention which is not only time-consuming but financially prohibitive for most people.  

The solution for impasse resolution is often nothing more than the offering of sincere apology to the offended party. The essence of the sincere apology being that it is unreservedly made without the assignment of moral blameworthiness or fault..

In a nutshell, in order to be classified as sincere, the apology must:-

1. Take into account the offended party’s experience of the situation causing offence;  
2. The offending party must resolve not to knowingly or wilfully repeat the action or communication causing offence;
3. The apology must be made unreservedly in other words it must not be dependent upon the offended party also apologising for their alleged role in the dispute or an aspect of the dispute (undoubtedly such course of action is recommended but if the apology is made on the basis that there be a counter-apology it is clearly not unreservedly made)
4. The apology must be made without justification or explanation for the past conduct or words spoken; and 
5. The apology must in addition be without correction or advice as to how the offended party should in the future act, speak or conduct themselves or how they should have at the time in question, acted, spoke or conducted themselves.

There is always the unfortunate possibility that communicating an apology may lead to the offended party assuming a moral high-ground and passionately pursuing further legal intervention. What the offended party chooses to do with the apology is neither predicable nor generally preventable but it is worth bearing in mind that from a court’s perspective, an apology is usually taken into account (its influence on outcome depending entirely upon the circumstances of the matter) and it will generally serve to act as a mitigating factor from a judgement and outcome perspective. 

As a rule though a sincere and unreserved apology timeously made has greater potential to release resentment, bitterness, anger and hatred and promote trust and dialogue - an essential requirement particularly where children, extended family and close-knit friendship circles are involved.

For more information hereon please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com