Family Mediators' Association of the Cape

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Many thanks again for the great course. It was valuable and inspiring. I am certainly committed to the concept of mediation, and to developing skills that will enable me to assist parties in a far more sensitive, realistic, dignified and self-enabling process than litigation, wherever possible and appropriate.
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What is Mediation?

Mediation involves families in conflict working out arrangements for themselves and their children with the help of neutral and skilled mediators. The aim of mediation is to reach an agreement which is mutually acceptable to the parties within the broad range of that which a court would be likely to approve.

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In the Children's Act PDF Print E-mail

Mediation in the Children's Act 38 of 2005
Presented by: C. Schneider
Miller du Toit Conference – 26 January 2007


I have been asked to prepare input on mediation as it applies in the Children's Act 28 of 2005. In order for me to do so it is necessary for me to explain briefly the concept of mediation and the advantages and disadvantages thereof so that it will be more readily understood as to how mediation is to apply in the Act.

Mediation has inspired many debates: pure versus formal mediation, facilitative versus settlement orientated mediation, mandatory versus voluntary and since mediation has become legislated in various countries, the debate connected with court-ordered mediation.

The social science literature focuses on the subjective and objective aspects of mediation – improving the relationship between the disputing parties and between a parent and child, satisfaction and connectivity, reduced legal costs and effectiveness.

The socio-legal literature offers explanations of behavior that transcends the traditional views of how people view and react to the law as it focuses on the parties' subjective perceptions of the fairness and legitimacy of various dispute resolution procedures.

The essence of mediation is that it involves an impartial third party who creates a safe space within which one is able to explore different solutions to bring about a negotiated agreement acceptable to the disputing parties. It is a space where the parties are able to communicate their frustrations, insecurities, concerns, needs, dissatisfactions wishes and desires. it is a quick and comparative inexpensive process which is conducted on a without prejudice basis and is confidential in nature. The process re-orientates parties towards each other without imposing rules or outcomes on them but rather enabling the parties to be more involved in the process of resolution, helping the parties to achieve a new and shared perception of their relationship which will then re-direct their attitudes and dispositions towards each other.

Mediation avoids the win/lose situation of the adversarial system thereby bringing about a greater sense of satisfaction and closure than a resolution which is imposed upon them by a court or uninvolved third party.

Proponents of mediation on a deeper level also opine that mediation has the ability to transform disputing parties into more psychologically and morally aware people. This it does by offering disputants a space where many different issues and aspects are confronted and dealt with thus bringing about self determination and empowerment as the parties are directly involved in the process and are not able to hide behind their lawyers.

Mediation promises disputing parties the opportunity to participate actively and directly in their own process within which they are able to bring about the resolution to their dispute, to control the process by deciding on the issues to be resolved, determining their discussions, creating and exploring different options for settlement which would otherwise not be open to them in the adjudicative process and most importantly to control the final outcome of the dispute. It takes the power and control out of the hands of third parties and firmly places it in their own hands. It enables parties to achieve a sense of their own value and strength and self actualization to resolve their problems. It also evokes in the parties an acknowledgment and empathy for the situation and problems of the others. Mediation therefore solves more than the mere legal problems arising from the breakdown of the relationship - it helps people to identify, empathize, sympathize and acknowledge the human and emotional problems and leads to more interconnectedness and tolerance between people and thus a stronger, more acceptable and effective resolution.

There has been a resistance (and in South Africa it remains a strong resistance) to court mandated mediation. However, Court connected mediation flourishes in Australia, in certain states of America and in the United Kingdom. The humble hope for a Court connected/mandated mediation is simply that it might lead to fairness and affordable justice where the adversarial model might not. It will also assist the justice system by reducing case loads on the Courts, the Family Advocate's offices and provide people with greater access to justice. I will return to the issue of Court mandated mediation in the South African context later.

MEDIATION AND THE PRACTISE THEREOF

There are various types of mediation which are used which all have the same fundamental goal – the self-determination of the parties. The various approaches are:
  1. Pure Mediation – in this process, the mediator merely acts as a neutral third party who facilitates communication between the parties - the mediator does not evaluate, judge or propose solutions.


  2. Transformative Mediation – here the mediator skillfully leads the parties to a higher level of discussion enabling the parties to see both their and their partner's perspectives and coming to a solution.


  3. Facilitative Mediation – here the mediator becomes more involved between the parties and facilitates ideas for creative solutions by probing and guiding the parties – similar to that of a counselor.


    4. These approaches all are individual-orientated rather than legally-orientated.

  4. Evaluative Mediation - Evaluative and settlement orientated mediators are goal-orientated to resolve the dispute by using more interventionist techniques eg – strength and weaknesses of each party, power-imbalances, commenting on court decisions applicable to the dispute. These mediators put forward settlement proposals and may even urge and pressure parties to settle a matter.
This style of mediation actively undermines the parties' self-determination (a lot of my colleagues will recognize that this is the type of behavior which they undergo when negotiating a settlement with the other attorney in a round-table conference setting – so we are all mediators in a sense).

CO-MEDIATION

The ultimate mediation model is that of co-mediation whereby a legally trained mediator operates with a mental health professional to bring about a holistic settlement. In this process, all aspects of a divorce are able to be resolved - custody/care, contact/access/visitation, child and personal maintenance, financial issues – including all proprietary aspects of the divorce. The advantages of a mental health professional assisting the parties in creating and finalizing a parent plan together with the parties and a legal mediator are overwhelming – “the parties are authors of their own parenting responsibilities”, it is neither imposed upon them by a Court nor by a psychologist as a result of a detailed assessment – “any disputes, queries or disagreements are able to be ventilated and resolved in a safe space where the parties do not feel the threat of being 'analyzed'/ “assessed”/cross examined and therefore the chances of the parenting plan being successfully implemented are greater”.

The mental health professional is able to assist the parties to communicate with each other not only in respect of the children but also between themselves and to develop a new manner of interaction without being in a therapy environment. The mental health professional is not interested in analyzing/counseling the couple but rather in mediating the dispute – by alerting the couple to the problems/pathologies, dissipating anger towards each other, isolating unproductive patterns of communication, guiding the parties from an emotional..........................and towards a resolution.

The co-mediation model allows for a division of labour, for one party to act as an observer as to the dynamics of the process and to address a gender imbalance should the mediation team consist of a man and a woman.

The major opposition/obstacle to the co-mediation model is one of cost. The cost of two professional mediators is beyond the reach of the ordinary person but is still cheaper than the adversarial approach where each party is represented by their own lawyer.

MEDIATION PROCESS

I do not intend to take you in detail through this process but rather refer you to the introductory letter being annexure “A” to my paper. The most important issues to ensure a successful mediation are:

  1. Procedural fairness – each party must feel that they have been given the right to be adequately heard.
  2. Full and open disclosure of financial issues;
  3. Mediator neutrality;
  4. Confidentiality of discussions – a safe space is to be created and held so that all aspects necessary to bring about a resolution can be explored;
  5. Freedom to terminate the mediation at any time;
  6. The skill of the mediator.
  7. Parties being properly prepared and advised for mediation.
  8. Parties understanding their right to contract advisors of their choice during the process eg. lawyers, counselors, therapists, financial/spiritual advisors.

 

WHEN CAN MEDIATION BE USED

  1. Divorce.
  2. Maintenance – child and personal
  3. Custody/access/visitation disputes
  4. Proprietary disputes
  5. Post-divorce disputes eg. which school a child must go to.
  6. Permanent relationship disputes
  7. Same gender relationship disputes.

 

MEDIATION IN ACT 28 OF 2005

The object of the children's Act as set out in Section 2 is that:

  1. best interests of the child are of paramount importance, to make provision for structure, services and means for promoting development of children;
  2. to strengthen and develop community structures and to generally promote the protection and well-being of children.
In Section 6, general principles are set out to assist in implementing the legislation and guiding proceedings, actions and decisions concerning a child. The Act recommends that a confrontational approach and delays are to be avoided.

Section 7 relates to the “best interests of the child standard” and this Section is relevant with regard to mediation as specific provision is made for action or decisions to be taken which “would avoid or minimize further legal or administrative proceedings in relation to the child”.

Mediation is similarly envisaged in Section 29 which relates to court proceedings as Section 5(a) provides that a court may, for the purposes of a hearing order that “a report and recommendation of the Family Advocate, Social Worker or other suitable qualified person must be submitted to the court”. Therefore should the parties reach agreement through the mediation process, that mediated agreement would be referred to and taken into consideration by the court.

Chapter 4 refers to Children's Courts and Section 45 refers to matters which Children's Court may adjudicate. Section 46 refers to Orders which the Children's Court may make and specifically Section 46(1)(g) states that “the Court may make an Order subjecting a child, a parent or care giver of a child, or any person holding parental responsibilities and rights in respect of the child to :

  1. Early intervention services;
  2. A family preservation programme; or
  3. Both early intervention services and a family preservation programme”.
Similarly Section 46(1)(8) allows the Children's Court to make a Child Protection Order which Order can include: “instructing a parent or care-giver of a child to undergo professional counseling, or to participate in mediation, a family group conference, or other appropriate problem solving forum”. The Legislature has therefore clearly envisaged that mediation will play a large role both in Court Applications and particularly Children's Courts in order to ensure that the best interests of the children are paramount, to avoid unnecessary delays and to move the process from an adversarial process to a resolutive one.

Section 49 is a specific empowering Section relating to “lay-forum-hearings”. In this Section, a Children's Court is empowered, before it decides a matter, order a lay-forum-hearing in an attempt to settle the matter out of Court which may include:

  1. mediation by a Family Advocate, Social Worker, Social Service professionals or other suitable qualified person;
  2. a family group conference contemplated in Section 70; or
  3. mediation contemplated in Section 71.
Section 70 relates to Family Group Conferences and makes provision for the Children's Court to cause a family group conference to be set up involving the parties in the matter including any other family members of the child in order to find solutions for any problem involving the child. The Court must appoint a suitably qualified person or organization to facilitate at the family conference and it is here where mediators and facilitators whether legal or mental health professionals will be heavily involved. Naturally the facilitators are to keep a record of any agreement of settlement reach and any fact emerging from such conference which ought to be brought to the notice of the Court and then consider any report filed when the matter is heard. It is therefore clear that this Family Group Conference would not be on a without prejudice basis but further details hereof will be set out in the Regulations (which are still to be drafted).

Similarly Section 71 relates to “other lay forums”. Here the Children's Court may refer a matter to any appropriate lay forum including a traditional authority in an attempt to settle the matter by way of mediation out of Court. Here mediation is specifically referred to and both legal and mental health professional mediators will be of assistance in bringing about a resolution in a non-adversarial manner. The only issue which is specifically excluded from any issue to be mediated is that of alleged abuse or sexual abuse of a child. Once again, the Court may prescribe the manner in which the record is kept in any agreement of settlement or any fact emerging from such conference and will consider a report on the proceedings when the matter is heard.

Section 72 relates to matters settled out of Court wherein a settlement which has been accepted by all parties and signed by all parties is submitted by the Clerk of the Court to the Children's Court for confirmation or rejection. The Court may confirm the settlement and make it an Order of Court or, before deciding the matter refer the settlement back to parties for reconsideration of any specific issue or naturally reject the settlement.

An interesting section is Section 150 which relates to a child in need of care and protection. Herein specific remedial provision is made whereby it is found, after investigation by a Social Worker that a child who has been referred for investigation (in terms of sub-section 2) as a possible victim of child labour or in a child headed house-hold is found not to be a child in need of care or protection, the provision is made for the social worker to take such measures necessary to assist the child which could include mediation and various other services.

Section 155 relates to decisions of whether a child is in need of care and protection. Herein a social worker must investigate the matter before the child is brought before the Children's Court and within 90 days compile a report on whether the child is in need of care and protection. It is open to the social worker to set out, in their report measures recommended to assist the family which could include mediation. The act takes a large leap forward in looking at alternative ways in which to resolve disputes, looks to move away from the adversarial approach to a more inclusive, participatory and softer approach to ensure that the best interests of the children are paramount and to resolve matters and disputes in a more gentle, humane and less adversarial manner. Mediation will play a very important part in this process and it is gratifying to note that the legislature has finally come to realize the importance of mediation.

It is my sincere hope that the recognization and recognition of the importance of mediation as evidenced in its specific reference and inclusion in the Children's Act is but the first step in a process whereby mediation takes a more central role in family law disputes. It is my sincere belief that the concept of mediation ought to be brought into the mainstream of South African family law by amending the Divorce Act of 1979 to make specific provision for mediation to be court mandated mediation prior to parties being entitled to apply for a trial date. In the South African Labour Law processes it is not possible to obtain a date for trial either in the Labour Court or an Arbitration hearing date unless and until such time as the parties have attempted conciliation through the CCMA (Commission for Conciliation, Mediation and Arbitration). Only once the parties have attempted to conciliate the matter and a Certificate of Outcome is issued which either sets out the agreement reached or that an agreement was unable to be reached, a party is then able to apply to the CCMA for a date for arbitration or for a referral to the Labour Court. Similarly in our family law procedures ranging from maintenance hearings to custody hearings to divorce hearings, a trial date or not to be granted by the Registrar or allocated by a Judge unless and until the Registrar or Judge is in possession of a Certificate of Outcome setting out that the parties have participated in a mediation process but failed or sets out the issues in dispute as determined by the mediator. Should the parties fail to have attempted mediation then they ought not to be entitled to a hearing. Whilst I understand clearly that not all matters are not able to be resolved through mediation, my personal experience is that once parties have had the opportunity of being heard and of hearing the other side in an open yet contained environment, the chances and prospects of resolving the disputes are increased.

There are numerous obstacles to the implementation of court mandated/compulsory mediation. In my opinion, the main obstacle is ignorance. Ignorance of the mediation process by the disputing parties, ignorance of the process (with respect) by family law practitioners and colleagues as well as ignorance of the process (with the greatest of respect) to Presiding Officers. The ignorance of the parties is due to the lack of information as to what constitutes mediation. Many people believe that mediation is an attempt by a neutral third party to reconcile the parties. Mediation is goal orientated with a view to bringing about a settlement of a dispute. Many of my colleagues are also fearful of the process as should a matter be resolved in mediation, it could then mean that it is taking away their income and depriving them of the possibility of a lucrative day in Court.

However is it not our responsibility as lawyers to ensure that people have access to justice, that our clients are heard and that the best possible settlement is obtained for our client. With regard to the best possible settlement I do not mean merely the most money for our client or the exclusion of contact by a parent but rather the best settlement on a holistic basis whereby it is an agreement that sits well for the disputing parties, for their respective families and most important of all for the children involved. The Presiding Officers, if they were able to understand the advantages of mediation in reducing their court rolls, and enabling people to have access to justice and to be heard, they would embrace the concept and force both practitioners and disputing parties to look inside rather than outside not only for solutions but also for where the problems originate from.

Presently there are numerous organizations throughout South Africa which provide mediation skills, mediation training and mediation services. In Cape Town we have FAMAC (The Family Mediators Association of the Cape) the organization in which I am involved, is currently involved in pro bono work in collaboration with the Cape Town Family Advocate's Office whereby we assist on a fortnightly basis with mediations – these have been extremely successful. A pilot project is being discussed whereby a further collaboration will take place between the Family Advocate's Office, the Arbitration Forum and FAMAC to provide a more regular and structured mediation service to the Family Advocate's offices. FAMAC is closely involved and has a strong working relationship with the Cape Town Family Advocate's Office to the point that the Cape High Court and the Southern Divorce Court's are not prepared to grant any joint custody Orders unless a mediation/facilitation clause is included in a Consent Paper to make provision for the eventuality of any dispute arising in joint custody or joint decision making.

To this end I have taken the liberty of including draft clauses which have generally been accepted by the Family Advocate's Offices and the Court. I have taken a further liberty of annexing a clause which I include in my Antenuptial Contracts whereby the parties agree to attend mediation at first instance in the event of any dispute arising out of their marriage. These clauses are proposals and not conclusive.

In Johannesburg there is SAAM (The South African Association of Mediators), in Durban we have MISA (The Mediation Institute of South Africa). The details of these mediation institutes are set out at the bottom of my paper and I encourage you all to make contact with these organizations to educate yourselves, to open your minds and your hearts to accepting and promoting the process of mediation so that we are able to encourage families to communicate with each other, to resolve their disputes in a less aggressive and antagonistic manner and to ensure that all parties have access to justice.

I therefore beseech you to assist in rallying for court appointed mediation to become mandatory.

MEDIATION CLAUSE – ANTENUPTIAL CONTRACT

The parties hereby agree that should any dispute arise out of the impending marriage, they agree to attempt to resolve the disputes by entering into the mediation process with a view to resolving any and all of their disputes. Both parties agree to undertake the mediation in good faith.

MEDIATION CLAUSE
The parties agree that in the event of any dispute arising herefrom relating to the minor children, maintenance of the said children or any other matter pertaining to the divorce such dispute shall be resolved through mediation.

Should the parties fail to agree to a mediator then the Chairperson of FAMAC shall appoint a mediator to resolve the dispute. Both parties agree and undertake to enter into the mediation process in good faith and shall use their best endeavours to bring about an amicable resolution to the dispute. The mediation process shall not prevent the parties from approaching the Courts for relief.

FACILITATION CLAUSE
Should any dispute arise between the parties regarding the minor children and any joint decisions such dispute shall be referred to a facilitator. A facilitator has been appointed by the parties jointly. In the event of the facilitator being unable to continue as facilitator then he/she shall appoint a facilitator in his/her place. Alternatively, such replacement facilitator shall be appointed by the chairperson for the time being of FAMAC (Western Cape).

The cost of sessions with the facilitator shall be shared equally between the parties unless otherwise directed by the facilitator. Each party shall, however, be liable for the facilitator's costs incurred attendant upon such party's written and telephonic communications with the facilitator. The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator if he/she deems it appropriate or necessary.

In the event of the parties being unable to reach agreement with the assistance of the facilitator, then the facilitator shall be entitled to issue a directive in respect of such issue which shall be binding upon the parties until a court of competent jurisdiction orders differently.
 
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