One of the benefits of mediation for parents is that the judge and the expert adviser are able to pool their skills to help the parents arrive at a solution that is in the best interest of the child. To reach an agreement in the course of mediation, parents are asked questions that prompt them to consider circumstances that are central to the child’s best interests. The purpose of the questions is to encourage parents to find a solution that is best for their child in that particular situation. A key principle of mediation is that it is voluntary and is only initiated with the consent of both parties. They must genuinely want mediation and have the right to end it at any point without having to disclose any reason for it. Mediation is informal and conversational, and parents can engage a legal adviser for support. The role of a lawyer in mediation is also completely different from that of a lawyer in court. The legal adviser serves as a participant in the mediation process and is also responsible for trying to maintain as amicable an atmosphere as for the family or the child and his or her future prospects. Mediation can address parental disagreements concerning the child’s residence, rights of access and maintenance. Additionally, mediation can resolve a number of issues relating to the child’s daily life that could not be dealt with in court. A case can also be referred to mediation in mid-proceedings. If so, the proceedings are adjourned to await the outcome of the mediation. The mediator is a judge specialising in family law matters, assisted by a parenting and child development expert, usually a psychologist or social worker. The mediating judge is not the same judge who hears the custody dispute in court. The expert is involved in the process in order to ensure that mediation addresses all the key issues and that the final agreement is in the child’s best interest. In the past, such a multi-professional approach was rare in courts, but mediation has provided solid evidence that it helps judges and lawyers gain new insights into child development and welfare when working together with the experts participating in mediation. 66 LAWYER MONTHLY OCTOBER 2023 possible between the parents and for negotiating with the client in order to contribute to reconciliation. The outcomes of Follo mediation range from a comprehensive to partial agreement or failure. If the parties reach a comprehensive agreement, the court proceedings will be closed. Any pending legal proceedings will also be terminated. If the mediation is unsuccessful and the case is pending in court, the proceedings will be resumed to proceed from the point reached when mediation started. If the agreement is only partial, the court will only continue to address the parts of the agreement that remain in dispute. A settlement reached in mediation is equivalent to a court decision or judgment. However, a court of law may not affirm a settlement if it is unlawful, manifestly unfair or would infringe upon the rights of a third party. Any affirmation of an agreement on child custody, rights of access and maintenance is also governed by the provisions of the Child Custody and Right of Access Act and the Child Maintenance Act. In other words, the agreement to be confirmed must be in the best interests of the child.
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