In the children's act
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 behaviour 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 comparatively inexpensive process that 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 that 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 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 to dispute 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 acknowledgement 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 that are used which all have the same fundamental goal – the self-determination of the parties. The various approaches are:
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.
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.
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 counsellor.
These approaches all are individual-orientated rather than legally-orientated.
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 behaviour 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).
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/counselling 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.
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:
Procedural fairness – each party must feel that they have been given the right to be adequately heard.
Full and open disclosure of financial issues;
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;
Freedom to terminate the mediation at any time;
The skill of the mediator.
Parties being properly prepared and advised for mediation.
Parties understanding their right to contract advisors of their choice during the process eg. lawyers, counsellors, therapists, financial/spiritual advisors.
WHEN CAN MEDIATION BE USED
Maintenance – child and personal
Post-divorce disputes eg. which school a child must go to.
Permanent relationship disputes
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:
best interests of the child are of paramount importance, to make provision for structure, services and means for promoting the development of children; 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 suitably qualified person must be submitted to the court”. Therefore should the parties reach an 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 caregiver of a child, or any person holding parental responsibilities and rights in respect of the child to :
Early intervention services;
A family preservation programme; or
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 caregiver of a child to undergo professional counselling, 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:
mediation by a Family Advocate, Social Worker, Social Service professionals or other suitably qualified person;
a family group conference contemplated in Section 70; or
mediation contemplated in Section 71.