How mediation can help custody disputes

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MEDIATION is the way forward. In an ideal situation, mediation will help the divorcing couple come to an agreement that is suitable for both parties and their children. This way, the agreement is made by both parties and not by the judge, who would not know the family or the child.

Mediator, advocate and solicitor Lim Siew Symn says that mediation gives control on the outcome to the parents.

Here, she shares her knowledge on the issue:

How can mediation help in custody disputes?

Parents have more control over the outcome of a custody dispute, if they mediate. Generally, if they take the litigation route, the courts have to look to the statutes and case law in deciding on an outcome. No two families are the same, even if the surrounding facts may be similar. What’s ideal for one family may not be for another.

Mediation gives parents an opportunity to work towards a sustainable settlement, given their individual needs. These conversations are naturally difficult to begin with, but mediation provides the structure and the environment for parties to get to the heart of the matter, the issues that are really important to them.

Who decides the custody in mediation cases?

It is the parents who decide how to share in their children’s time, through mediated discussions. Unlike an arbitrator or judge, the mediator’s job is not to decide for them. Rather, it is to help re-establish the channels of communication between the parents and to help manage this process of communication, so that they are able to systematically isolate and communicate effectively on these issues.

The mediator’s job is also to help parents, together with their legal advisers, make informed decisions as to what their options are, and which of these options would be best.

Do many families go through mediation in Malaysia to decide on custody?

Most of my clients who have children, and who wish to mediate the terms of their divorce / separation, would invariably wish to settle custody terms as well. Whether they will benefit from mediation would depend on their commitment to the process, the level of conflict between the parties at the time and whether there is a power imbalance between them, their ability to communicate effectively and their commitment to their child’s wellbeing.

Do the children have any say in who they live with?

It would really depend on the age and maturity of the individual child. It’s best if the parties (jointly) appoint an independent child psychologist, to evaluate the child and make recommendations (for discussion at mediation) that would assist them in making decisions about what’s best for their child.

What if everything is agreed on, and months or years later, one parent, or the child, is unhappy with the arrangement? What happens then?

They would be able to either mediate their dispute or refer it to the courts. – By BRIGITTE ROZARIO

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What the law says about child custody