Code of Practice

For the purpose of this Code “family mediation” is defined as a process whereby one or two impartial mediators assist a couple or family members in their discussions with one another, in relation to any family disputes that may exist between them, with a view to the resolution of such issues on an informed, voluntary basis. “Divorce mediation” is defined as a form of family mediation which relates specifically to any and all matrimonial issues, including separation and divorce matters, questions concerning children, and issues relating to property and finance.

The Code of Practice shall apply to any family and divorce mediation (for this purpose collectively called “mediation”) conducted or offered by members of the Family Mediators' Association of the Cape (FAMAC).

• Qualification and Training.

• Principles of Mediation

• Duties Concerning Information, Advice and Agreement

• Duty of Impartiality

• Responsibilites to Participants' Lawyers

• Responsibilities in Relation to Children and Family

• Duty To Insure

• Responsibilites Relating to Publicity

• Responsiblities in Relation to Administration

• Duty to suspend or Terminate Mediation

 

A     QUALIFICATION AND TRAINING

Because mediation is likely to involve not only legal, practical and financial matters, but also emotional issues and in many cases matters concerning children, their behaviour needs and best interests, mediating members of the Family Mediators' Association of the Cape shall meet the following requirements in order to act as mediators:

 

Undertake training in mediation recognised by the Family Mediators' Association of the Cape;

 

Be a Mediating Member of the Family Mediators' Association of the Cape; and

 

Undertake such mediation, where advisable, jointly with another mediator whose qualification and training have also been recognised by the Family Mediators' Association of the Cape.

 

B     PRINCIPLES OF MEDIATION

Mediation is voluntary, and either participant, or the mediator(s) can terminate it at any time.

Notwithstanding the involvement of a lawyer-mediator, the mediators do not advise as lawyers, and mediation is not a substitute for each participant obtaining independent legal advice when necessary; and before any agreement is entered into both participants will be advised to take their mediation summary to his or her own independent lawyer.

 

The mediator(s) will not voluntarily disclose information obtained through the mediation process without the consent of the participants, except where such disclosure may be required by law, for example where a member of the family appears to be at risk of serious harm (and such disclosure will be discussed, wherever practicable, with both participants).

So far as practicable all discussions and negotiations are to be held on a privileged "without prejudice' basis; and the participants are to be required to agree not to refer in any proceedings that may subsequently take place to any such discussions and negotiations, or to require the mediator(s) to do so nor may either participant have access to the mediators' notes: save for any discussions which both participants and the mediators all agree are to be on an open basis, and save further that any information as to the participants' circumstances given with a view to resolving the financial issues is to be on an open basis.

Mediation assists both participants to work out arrangements which they consider appropriate in their particular circumstances and the outcome may be different from the result of adjudication by the Court.

 

The mediator(s) will not accept any confidential or secret communication from either participant without disclosing it to the other, except that if either or both participants do not wish an address or telephone number to be disclosed to each other, the mediator(s) will respect that wish.

The mediator(s) shall not act for either party against the other during or subsequent to the mediation.

The basis on which fees will be charged to the participants must be clarified in advance and some indication given as to the anticipated length of the mediation process.

 

Explanation of Fees : The mediator(s) shall explain the fees to be charged for mediation and any related costs and shall agree with the participants on how the fees will be shared and the manner of payment.

 

Reasonable Fees : When setting fees, the mediator(s) shall ensure that they are explicit, fair, reasonable and commensurate with the service to be performed. Unearned fees should be promptly returned to clients.

 

Mediators are encouraged to provide some mediation service in the community for nominal or no fee.

 

Referrals and Commissions : No commissions, rebates or similar forms of remuneration shall be given or received for referral of clients for mediation services.

 

C     DUTIES CONCERNING INFORMATION, ADVICE AND AGREEMENT

It is recommended that the mediator(s) shall record the Principles of Mediation set out in B above in the form of a written agreement between themselves and the participants.

 

In any mediation in which the participants need to decide on any financial and/or property issues, the mediator(s) shall inform them of the need to give full financial disclosure, and shall assist them in identifying what information is required and, so far as practicable, in considering such information.

 

The mediator(s) shall ensure that both participants are afforded the opportunity during the course of the mediation of making enquiries about the financial disclosure given by one another, and of requesting any additional information and documents that may be required.

The mediator(s) shall make it clear to the participants that the mediators have no power to make or require independent enquiries or verification to be made in relation to any such financial disclosure, and that each participant may obtain independent legal advice as to the adequacy of the disclosure and as to whether the swearing of an affidavit deposing as to their financial circumstances is required.

 

The mediator(s) shall make it clear to the participants that the mediators have no power to make or require independent enquiries or verification to be made in relation to any such financial disclosure, and that each participant may obtain independent legal advice as to the adequacy of the disclosure and as to whether the swearing of an affidavit deposing as to their financial circumstances is required.

The mediator(s) should consider making recommendations to the participants as to the desirability of seeking further assistance from other professionals such as accountants, expert valuers, and life insurance and pension brokers.

 

The mediator(s) assist the participants by identifying areas of agreement, narrowing and clarifying areas of disagreement and defining issues. This may include explaining procedures, methods of approach and consequences of different proceedings, including injunctions and the nature and finality of Court orders; advising on the nature and extent of financial disclosure required as the basis for sound settlement; and where appropriate, clarifying the broad principles of law relevant to the dispute

 

Neither mediator shall give legal advice on the merits of the dispute being mediated nor shall he or she give directions or make predictions as to the result of litigating the issue(s) in dispute in such a manner as to steer the participants towards the mediators' preferred outcome.

The mediator(s) should recommend that the participants each obtain independent legal advice wherever this appears appropriate during the mediation; and must do so where the participants have arrived at mutually acceptable proposals for resolution

The mediator(s) shall not voluntarily disclose information obtained through the mediation without the consent of the participants, except where such disclosure may be required by law.

 

The mediator(s) should where appropriate or required by the participants prepare a summary of the outcome of the mediation for the participants, which shall not be binding on the parties and shall clearly so state. The mediator(s) should discourage, and shall not be party to the participants' binding themselves to any agreement based on such summary which has not been considered and reviewed by their respective independent advisers. If either or both participants insist on proceedings without independent legal representation or advice, they should be warned of the risk in not being represented or advised.

 

D    DUTY OF IMPARTIALITY

The duty of impartiality is inherent in the mediation process. A mediator's actual or perceived impartiality may be compromised by social or professional relationships with one of the participants at any point in time. The mediator(s) shall not proceed if previous legal or counselling services have been provided to one of the participants. If such services have been provided to both participants, mediation shall not proceed unless the prior relationship has been discussed; the role of the mediator made distinct form the earlier relationship and the participants given the opportunity to freely choose to proceed. Mediator(s) should be aware that post-mediation professional or social relationships may compromise the mediator's continued availability as a neutral third party. Mediator(s) should disclose any circumstance to the participants that might cause a conflict of interest.

 

A mediator will not act in a dispute in relation to which he or she may acquire or has at anytime in the past acquired relevant information in his or her capacity as a lawyer, advisor or counsellor for either participant.

Once a lawyer has acted as a mediator, he or she may not act for either participant individually in relation to the subject matter of the mediation

Mediator(s) must be alive to the fact that power imbalances and patterns of behaviour which existed during the marriage or other relationship are likely to continue in the mediation, and must use their skills to guard against these resulting in an inequitable resolution of the issues. They should try to prevent manipulative or threatening behaviour by either participant.

The mediator(s) should be alive to the fact that in some circumstances engaging in mediation may carry risks of allowing a status quo to become established to the detriment of either party.

Mediator(s) shall inform both participants if they believe that either participant is abusing the mediation process; or that a court might not make an order in the terms mutually proposed; or that the participants are moving towards a result which, in the mediators' view, appears to be so unfair that it would be a miscarriage of justice.

 

E    RESPONSIBILITIES TO PARTICIPANTS' LAWYERS

As soon as practicable after having initially met the participants and being instructed to commence mediation, the mediator(s) shall notify any lawyer acting for the respective participants of their appointment as such mediators.

The mediators shall not, except with the specific authority of both participants, discuss or correspond about the merits of the issues with the participants' lawyers. However, they may communicate regarding formal matters of procedure, cost and timetable

Where the mediator(s) are notified that either participant has retained a lawyer on record in any pending proceedings, and where so requested specifically, the mediator(s) shall forward a summary of the outcome of the mediation to such lawyers, together with any open information given in the course of the mediation by the participants with a view to resolving the financial issues.

 

F    RESPONSIBILITIES IN RELATION TO CHILDREN AND FAMILY

The mediator(s) should assist the participants to take account of the needs, feelings and attachments of the children of the family, as well as their own.

The mediator(s) should advise both participants if they believe that any proposed agreement would be harmful to any children affected by it. The participants are, however, free to disregard this advice

If the mediator(s) believe that any member of the family who is the subject of mediation is or appears to be at risk of serious harm, the participants should be advised to contact the appropriate authority in that connection; and the mediator(s) must check with such authority without delay that this has been done. If neither participant is willing to contact the appropriate authorities themselves, the mediator(s) must do so.

 

G    DUTY TO INSURE

Before embarking on mediation, mediators shall ensure that they are covered to a reasonably sufficient extent by professional indemnity insurance in their capacities as mediators.

 

H    RESPONSIBILITIES RELATING TO PUBLICITY

A lawyer may, once accredited as a mediator by the Family Mediators' Association of the Cape, hold himself or herself out as such to the public, subject to the rules regarding advertising that may be issued from time to time by the Family Mediators' Association of the Cape, the Law Society of the Cape of Good Hope and the Cape Bar Council; but shall not do so unless and until so accredited.

 

I    RESPONSIBILITIES IN RELATION TO ADMINISTRATION

Mediators shall comply with the administrative requirements of the Family Mediators' Association of the Cape as laid down from time to time.

 

J    DUTY TO SUSPEND OR TERMINATE MEDIATION

Inasmuch as mediation is dependent upon both participants voluntarily participating in the process, either of them may at any time unilaterally terminate the mediation, or they may both agree to end or suspend it.

The mediator(s) should maintain the right to withdraw from the mediation process at any time, and to terminate it summarily. They shall terminate or suspend the mediation where:

They believe that the issues are inappropriate for mediation;

They believe that either of the participants is unable or unwilling to participate fully and effectively in the mediation process;

The participants insist on pursuing an agreement which in the view of the mediators is so unfair as to constitute a miscarriage of justice.

© 2016 by FAMAC. Proudly designed by Timeless Talks

  • Facebook Clean
  • Twitter Clean
This site was designed with the
.com
website builder. Create your website today.
Start Now