Mediation involves an impartial third person who creates a safe space within which one is able to explore different solutions to bring about a negotiated agreement acceptable to the disputing party. The process re-orientates parties towards each other without imposing rules or outcomes on them and enables them to become more involved in the process of resolution. It helps the parties to achieve a new and shared perception of their relationship and family relationship which changes their attitudes towards each other.
Mediation avoids the win/loose situation of the court system thereby bringing about a greater sense of satisfaction and closure. The parties participate actively and directly in their own process and outcome, are able to control the process by deciding on the issues to be resolved, determine the discussions, create and explore different options for settlement and most importantly control the final outcome of the dispute. It enables parties to achieve a sense of their own value and strength and self-actualization to resolve their problems.
Mediation works in conjunction with and reliant upon the involvement of both legal and mental health professionals. It is important that parties are aware of their rights and obligations so that they can participate in a meaningful mediation process to bring about their own resolutions. The mediator does not advise the parties but provides legal information. The legal advice is to be provided by the legal representatives of the parties and a mental health professional would, counsel and assist their clients in their and their children’s best interests.
Mediation requires procedural fairness, the full and open disclosure of all financial matters, the neutrality and skill of the mediator, that all discussions which take place within the mediation process are treated as confidential and the parties are free to terminate the mediation at any time.
Mediation can be used to resolve any type of family dispute – divorce (financial aspects, contact and care, rights and responsibilities in respect of the parents to the children, holiday contact, maintenance issues), post-divorce disputes (ongoing contact, disputes with regard to joint decisions to be made between the parties etc), maintenance, permanent relationship or civil union disputes, relocation matters, testamentary division. Mediation is cheaper, quicker and more user-friendly than the court processes.
Mediation has been incorporated in many sections of the new Children’s Act to give people greater access to justice and the ability to be involved in resolving their own matters. There has also been numerous judgments handed down by Courts throughout South Africa and even as high as the Appeal Court on the importance of mediation and particularly the duty of legal representatives to inform their clients of the option of mediation before entering into litigation. In one court case in Johannesburg – “the Brownlee Judgment” a punitive costs order was granted against the one party not only as a result of the way in which the legal representatives conducted the matter but particularly because the parties were not referred to mediation. The Appellate Court has also pronounced on the suitability of mediation particularly in family matters.
There are various mediation organizations around South Africa who assist parties to mediate and come to an agreement in respect of divorce and family disputes particularly concerning the responsibilities and rights of parents to their children, contact and care as well as maintenance payable for the children.
Moves are also afoot to introduce compulsory mediation through legislation in family matters. It is therefore clear that mediation is not only on the rise but in fact has arrived as all parties are seeing the benefits to retaining a re-arranged family structure and relationship going forward.