Divorce is hard on everybody – the husband, wife and especially the children. The kids are often caught in the middle of a tug of war between their parents.

They might even end up wondering if they caused the divorce; who will they live with; and when will they see the non-custodian parent. Besides all the questions, they are sometimes made to feel worse by parents who keep questioning who they would rather live with.

These are very real issues faced by families today and it's made much worse if the divorce goes to court with all the dirty laundry and animosity on display for everyone to see and hear. The more contentious the divorce, the longer it drags out in court.

That's how family breakups are for most people in Malaysia. However, today divorcing couples can opt for family mediation to settle the property division, parent plan and to discuss other issues as they disentangle their lives. This is cheaper, faster and less stressful for the whole family.

“Litigation is costly. And if you're talking about an all-out contentious divorce, we're talking about RM15,000-RM20,000 and that's a very conservative estimate. With a highly contentious divorce where you've got counsel on board, you're looking at upwards of RM20,000, even up to RM150,000. I know of people who sold their houses to pay their legal fees.

“With mediation, it is significantly less costly. We're looking at about RM1,000 for a three-hour session and if we're talking about property division, custody and maintenance, usually it can be resolved within three sessions. Maybe if it's a very difficult case with a lot of stuff going on then five sessions but probably no more than five,” explained Lim Siew Symn, a mediator with Thomas Philip Advocates & Solicitors. She was speaking at a talk held at her office last Friday.

According to Lim, mediation is a popular choice for countries like Singapore, Australia, France and the United States.

In Malaysia, it is still very new and not everybody is aware of the option.

At the talk titled "Seventy Minutes": Family Disputes - Why it Makes No Sense to Litigate, Lim explained that while a “good divorce” means the negative effect on the children is minimised and the parents co-operate, a bad one often has lots of conflicts with the children being dragged into divorce issues.

Lim: 'With mediation, the parties control the outcome and they can agree on terms.'

“What happens in those situations is that the children lose their relationship with one parent, more often than not it is the non-custodian parent and more often than not that is the father. And, they are caught in a loyalty conflict where they are often made to choose sides,” she said.

Explaining the difference between seeking litigation to mediation, Lim said, “Litigation is rights-based. All the problems are defined by what the law prohibits and all the resolutions are based on what their legal rights are. Even in a settlement in litigation, all the terms of the settlement are framed around what might actually happen in court. So, there are instances where you look at solutions just based on the law and a client's input will be limited because we just want to hear what will be relevant for a good legal argument in court. Everything else is ignored. So, emotions are ignored; their underlying interests are ignored.

“In mediation, emotions are relevant because we'd like to see why people are taking the positions that they are taking. In many ways, mediation is very client-driven; we're looking at the family and seeing what the family needs for the long term. We look at their feelings and what it is that drives them. People are more willing to talk and resolve those issues when they feel that their feelings are being heard,” said Lim.

While litigation is adversarial and lengthy, mediation is not; the mediation is done by a third party who has the interests of both parties at heart. And, any agreement is consensual and not determined by a third party, not even a judge.

What's additionally great about mediation is that it is not limited by traditional solutions such as the non-custodian parent getting the children only every other weekend. With mediation, whatever plan worked out can be tweaked to suit both parents' needs, if both approve to it, of course.

This works to the advantage of both as the plan is more flexible. And, it covers not just the basic things like where the children will stay and which days the other parent has access to them. It can include things like who will take the children to school, who signs the school permission slips, what to do in an emergency, who pays for the insurance, who keeps the children's passports and birth certificates, etc.

These may seem like small inconsequential details but in a contentious divorce they can become really important issues. Not all of them will be resolved if the couple take the course of litigation rather than mediation. And, if the judge decides who gets and does what, it can work against both parties.

“Mediation is much faster only because it's according to the parties' schedule and the parties negotiate face to face without their lawyers. There's no chain of events involving you calling your lawyer and your lawyer calling the other party's lawyer.

“With mediation, the parties control the outcome and they can agree on terms. And, they can talk about why certain terms are important to them.

“In family mediation, we are looking at bringing people away from their entrenched positions and into a more constructive co-parenting relationship and focusing on that so that they can start to learn how to talk to each other about things like that,” said Lim.

Why have a lawyer then? Rather than to fight your case for you and see who can get more, the lawyer's role is now more as a legal consultant, advising on their rights.

As Lim pointed out, parenting does not end with divorce. What is important is not who wins or who loses.

“What's important is getting people to work together in a way that they can make proper and careful decisions that are good for the children. What's important is not parental rights, but parental responsibility, and, for the children who have suffered so much trauma because of their parents' separation, at least they know that their parents are able to be a team for them no matter what happens in the future.

“For the parents, they will be able to say, 'We're not going to go through an embarrassing and long, expensive court battle. We're going to do what's right for you and we're going to do it quickly and we're going to do it respectfully and we're going to make this work for you.'

“It's difficult; I'm not going to say it's easy. Tempers are going to flare; people are going to get angry and upset but at the end of the day, the rewards justify the heartache.” - By BRIGITTE ROZARIO