We can work it out - The Benefits of Mediation in Divorce
Divorce ranks as one of the top 5 most stressful life events; it is a very challenging transition for the family as a whole. For couples contemplating separation and divorce, it can sometimes feel inevitable that litigation will be the way forward. However, mediation offers a constructive alternative to battling it out in the Family Court.
Family mediation is a voluntary, confidential process, whereby a mediator, a neutral third-party expert, helps separating spouses reach mutually acceptable agreements on the key issues arising out of separation and divorce, such as childcare arrangements, asset division, and financial support. When Parties engage in mediation no judge decides the family's future; rather with the assistance of the mediator, the couple does.
The advantages of mediation over litigation are substantial and well-documented. Mediation is inevitably far more cost-effective. In Hong Kong, the average cost of family mediation can be substantially less than contested litigation, which routinely runs into tens if not hundreds of thousands of dollars in legal fees.
A couple can undertake mediation on their own timetable and without the Court mandated deadlines. More often than not, the delays that are involved in Court proceedings do not occurs; if the Parties put their mind to it and earnestly engage in the mediation process, it is possible that their disputes can be resolved in a matter of weeks, whereby proceedings in Court that can stretch over months and ultimately years.
The time savings afforded by mediation can translate directly into reduced emotional strain on the couple and family as a whole. Court diaries are crowded, adjournments and further hearings are common and lead to delays, and each hearing, one after the other, can force couples into adversarial positions. In contrast, mediation can be scheduled at the couples' convenience and the whole procedure is aimed at achieving settlement. The lack of delay and the tailored pace at which mediation proceeds can also minimise prolonged uncertainty, which is one of the factors that heightens anxiety for everyone involved in family law proceedings.
However, perhaps the greatest benefit of mediation is control. In litigation, a judge who has never met the family imposes decisions and ultimately a ruling/judgement - based on limited information and no emotional connection - on the couple and the family as a whole. In mediation, the couple retain the decision-making power for themselves and their family. With the help of the mediator, the couple can craft creative solutions tailored to their unique circumstance, whether that is a flexible parenting schedule that respects and reflects both the children’s wishes and needs (and those of the Parties) or the division of the matrimonial property that the couple believes is fair and which avoids the forced sale of assets, for example. Studies show mediated agreements are more durable because both parties feel ownership of the decision and agreements, rather than resentment for having a decision imposed on them by the family Court.
For couples with children, mediation is especially valuable. It shifts the focus from winning to co-parenting. Research has shown that parents who mediated their parenting agreement are more likely to remain actively involved in their children’s lives years later, with lower ongoing conflict. When their parents mediate, children experience less exposure to hostility, which helps preserve their sense of security and emotional well-being. Mediation can also help model respectful communication, setting a healthier tone for future interactions between the co-parents at handover times, school events, and holidays, for example. In certain circumstances the couple can consider child inclusive mediation by involving a mediator/professional who is trained in child inclusive mediation.
Privacy and confidentiality are other major pros for mediation. Whilst Family Court proceedings are held in private, if ultimately the Court delivers a judgement, whilst details may be redacted in an effort to ensure anonymity for the Parties and the children, the judgement can be published thereby creating a public record accessible to anyone who cares to look for it. In contrast discussions in mediation are strictly confidential and subject to mediation privilege and nothing of the mediated agreement will be published. This protects the Parties' privacy and all related matters, such as reputations, business interests, and family dignity, which can be very important especially in small tight-knit communities like Hong Kong.
It perhaps goes without saying that mediation is not suitable for every situation (cases involving domestic violence or extreme power imbalances may require Court protection). However, statistics from Hong Kong’s family mediation pilots and international data consistently show success rates in the region of 70–80% when Parties engage in mediation in good faith.
If you are facing/contemplating separation and divorce, consider speaking with a qualified/accredited family mediator as early as possible. You do not have to sacrifice your financial security, your children’s stability, or your peace of mind on the alter of litigation. Mediation empowers you to end one chapter of your life respectfully and begin the next with dignity. The path may feel unfamiliar, but for many couples it has proven the kinder, wiser, and less expensive route to take.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.