Family Mediation in South Africa is a growing profession comprising primarily of family attorneys, psychologists, and social workers. Family Mediation offers to the “family-in-conflict” the option to utilize as an alternative to the legal system, an efficient, cost-effective dispute resolution process to assist them in resolving their dispute.
What is Family Mediation ?
Family Mediation is a dispute resolution process aimed at assisting people who are in a relationship with one another, in resolving their dispute without their first having to go the legal route in an attempt to have their dispute resolved. The process is informal and it takes place outside of the legal arena hence the process being known as an alternative dispute resolution process or ADR. Parties who choose to go the mediation route are not precluded from accessing the justice system should they at any stage, be of the opinion, that this is what is needed for their matter.
Mediator Facilitates the Process
The mediation process is conducted by a third-party facilitator known as a Mediator who is required to remain neutral, non-aligned to either party, and to have no vested interest as to how the dispute may ultimately be resolved. Family Mediators are generally drawn from a pool of trained Family Attorneys, psychologists, and social workers. The critical requirement for the Family Mediator is that he or she adopts a holistic approach to the mediation, at all times being alert to the role that the extended family in particular grandparents may play in the family unit as well as being sensitive to the issue of third parties and the role that a new partner may have in the child’s life.
The Cornerstone of Mediation
The principles of party self-determination, impartiality, and confidentiality of information are the cornerstones upon which Mediation rests and these principles are strenuously upheld by the Mediator throughout the process. The Mediator’s role is that of facilitating the parties’ discussions concerning the issues in dispute thereby helping them to avoid deadlock and breakdown in communication. The Mediator does this primarily by asking questions and by gently guiding the process back towards possible resolution of the issues in dispute.
Joint Sessions Preferred
Family Mediation sessions are normally conducted as joint sessions with all the parties present in the same room. There are however circumstances where separate sessions may need to be conducted with the parties, but this is generally at the discretion of the Mediator and only where all the parties are in agreement with separate sessions being held with the Mediator.
Attorneys at the Mediation
Attorneys are generally not present during the mediation, but this is often more of a cost consideration than anything else. Should a client require his or her attorney to sit in on the mediation, this can be arranged on the proviso that all the parties are in joint agreement with this.
Parties are throughout the process encouraged to engage in constructive dialogue with one another concerning the issues and disputes at hand and they are also encouraged to apply their minds to problem-solving attempts on how to best resolve their dispute so that a win-win outcome can be achieved.
It’s All in the Parties’ Hands
The final outcome of the Mediation is determined solely by the parties. The Mediator does not impose a solution on the parties or place pressure on them regarding how they should resolve their dispute, what the terms of their future agreement should look like, what steps should be taken to prevent further dispute in the future, and whether an apology is sought or required to conclude the matter and in what form such apology should take. Critically though, the process is a completely voluntary one and a party is not required to agree to a course of action or to settlement merely for the sake of resolution.