Dr Zaza Elsheikh
Divorcing couples often become trapped in freeze, fight or flight mode when communication between them breaks down. This situation can be made even worse by the stress of attending court, especially where there are financial or childcare arrangements to sort out.
There is another way to resolve these disputes which could offer a better way for many Muslim couples going through a divorce. Family mediation gives both parties the chance to come together and talk through the issues surrounding their separation. Unlike in court, where the judge decides the outcome of the dispute, they stay in control and make decisions about what suits them. The parties can reach an agreement which sets out mutually acceptable terms without resorting to lengthy court proceedings.
From April 2014, divorcing couples will be legally required to consider mediation through a Mediation Information and Assessment Meeting (MIAM) before making any court application. The main aim is for couples to understand what mediation is and how it could help their dispute. The exception to this requirement is where there is an issue relating to domestic violence or child-protection.
One of the most common myths about mediation is that it is marriage counselling. This is absolutely not the case. It is about finding practical solutions that help people make arrangements after they have decided to split up. It is less confrontational than going to court and can reduce distress to children. Mediation can also help when two people have been separated for a while and certain arrangements need to change.
Many mediators are familiar with a wide range of cultural sensitivities surrounding separating couples and their families. In my experience, Muslim couples often welcome the opportunity to resolve their differences through mediation as this is expressly prescribed in the Qur’an, Chapter 4, verse 35, “If you, (who believe), fear that a couple may break up, appoint one arbitrator from his family and one from hers.” Essentially the reference to “arbitrator” suggests the appointment of two mediators: one appointed by each party. Early reconciliation is the primary objective but other Qur’anic verses expressly allow divorce to be petitioned by either spouse.
I often mediate cases prior to divorce when a family is most in need of a non-judgmental, unbiased and sensitive intermediary. I always explain that the process is flexible to ensure that the needs of the couples, as well as any children, can be met. Fairness and equal treatment of both parties is key. Children’s views about contact arrangements, where to live and financial provision can also be included within the mediation process. I often meet with children, aged 6 -17, to talk about the impact of any of their parents’ proposals upon their lives. Confidentiality rules apply to children too unless there is a statutory obligation to report any information disclosed during consultation.
My initial role is to help separating couples talk though the options for living separately in the same or different households. The majority of my time is then spent on helping the parties to really think about the demands they are making and rephrase them in a way that both can accept. As an experienced mediator, I can predict each person’s reaction to proposals and subtly guide couples away from blame, criticism and insults.
For Muslim couples in particular, mediation can help them reach agreement about repayments and custody of the children whilst minimising the involvement of the parties’ respective family members which could fuel conflict between the separating couple. For the couple’s peace of mind, as well as their children’s well-being, mediation sessions can be convened swiftly and often achieve more lasting agreements than adversarial court procedures. Muslim couples in particular seem to welcome the strict confidentiality that mediation entails.
The Ministry of Justice has set aside an uncapped pot of money which means legal aid is still available for those who do not have the money to pay for mediation themselves, again helping to make it accessible for all communities. Certain criteria need to be met and the mediator can help check if an individual is eligible.
The fundamental aim of mediation is to give both parties the opportunity to come up with their own solutions, often leading to agreements that are more likely to last. Crucially, mediation also shows people going through a divorce that they can communicate effectively and amicably with one another – with the best interests of their children in mind. The parties can use this experience to manage disagreements in the future – surely a better outcome for everyone involved.
Dr Zaza Elsheikh, mediator and founder of Converge family dispute resolution service