Mediation & Forensic Services
“The quality of our lives depends not on whether or not we have conflicts, but on how we respond to them” -Thomas Chum
Forensic Investigations
Other services
WHAT IS MEDIATION?
Mediation is part of Alternative Dispute Resolution (ADR) or in other words, an alternative to litigation (Going to Court).
New legislation recognises the benefits of parties speaking directly to each other.
The process is less formal than a court or disciplinary environment and allows underlying issues, which may be the real cause of the conflict, to be addressed.
The process of effective conflict resolution educates parties in effective communication in a conflict situation.
Most disputes can be mediated as it involves concluding what is suitable to both parties rather than one that is fought out and a decision made by a party who is not directly involved in the dispute
“Mediation is the process whereby a third party, namely a mediator, assists the parties in identifying issues, clarifying priorities, exploring areas of compromise, and generating options in an attempt to resolve the dispute…. the main objectives of this mediation process are to facilitate discussions between the parties and to preserve the relationships between the parties that may become strained or destroyed through the adversarial nature of litigation. ”
-Askew
All parties must be present.
Mediation is not a court hearing and the mediator is not a judge.
Goal: negotiated settlement
Task-oriented: the focus is on external issues.
Mediation is not counselling or therapy. Feelings are not the focus.
Parties speak for themselves.
No third party controls the outcome or direction of the negotiations
Mediation involves families in conflict working out arrangements for themselves and their children with the help of an impartial and skilled mediator. 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.
Such sessions are facilitated by a mediator whose role is to manage the process. The parties are responsible for making all decisions in the mediation sessions. The mediator provides information and generates options to assist the parties in reaching agreements which are fair and reasonable.
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The mediator provides objectivity, experience, and expertise. The mediator helps parties resolve as well as reach agreement regarding arrangements for the children. The mediation process enables the parties to reach a lasting agreement and avoid the polarization often caused by the divorce / separation.
DIVORCE AND SEPERATION
Whether married or co-habiting, when the relationship terminates one or both parties need to move out of the joint residence. Various decisions need to be taken and because emotions run high, conflict is often unavoidable. Conflict may arise around aspects such as: who takes which items, the assignment of responsibilities regarding the care of the children, what the contact arrangements with the children will be and financial responsibilities.
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RIGHTS OF UNMARRIED FATHERS
Unmarried fathers may acquire full Parental Responsibilities & Rights in terms of Section 21 of the Children’s Act 38 of 2005. Disputes often arise as to whether the father indeed meets the criteria to acquire such rights.
Read more under Parental Responsibilities & Rights and Parenting Plans.
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CARE & CONTACT DISPUTES
Typically, when divorce proceedings are underway or there is a separation where children are involved, for various reasons, disputes arise as to whom is the “better” parent to continue the Care of the children and how or if, the other parent will have Contact with the children. In most instances, serious allegations are made against each other.
The allegations made may cause that such Contact is often frustrated or that it necessitates Supervised Contact.
Read more under Parental Responsibilities & Rights, Parenting Plans and Supervised Contact.
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POST-DIVORCE DISPUTES
Often, a few months or a few years following the finalization of the divorce, disputes arise around the Care and Contact of the children. The provisions of the Parenting Plan may no longer be applicable due to the developmental phase of the children, new partners becoming part of the lives of the children, material changes in circumstances, relocation of either parent etc.
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URGENT APPLICATIONS / INTERIM ARRANGEMENTS
When the divorce is not yet finalized or when parties are unable to reach agreement, one of the parties may approach the Court on an urgent basis to seek relief. The Court then intervenes and grants an Interim Order pending the finalization of the matter at hand. Urgent Applications can also be launched when there is an existing Court Order in place such as a Decree of Divorce or Parenting Plan, but which no longer meet the needs of the parties and the children concerned. Disputes may include frustration of Contact, relocation disputes, material change in circumstances etc.
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PARENTAL RESPONSIBILITIES & RIGHTS
Certain disputes with regards to Parental Responsibilities & Rights can be mediated. Other disputes or Applications will require an investigation and a report which is to be submitted to the Court or Office of the Family Advocate.
What are Parental Responsibilities & Rights?
Section 18(2) of the Children’s Act 38 of 2005 lists full Parental Responsibilities and Rights as:
Care
Contact
Guardianship - Section 18(3) defines Guardianship to include consent or refusal thereof around the child’s property, administrative, contractual and other legal matters, consent for marriage, adoption, departure or removal from the Republic of South Africa and application for a Passport.
Maintenance
Who has Parental Responsibilities & Rights?
Sections 19 and 20 of the Children’s Act 38 of 2005 describes that biological mothers and married fathers have full Parental Responsibilities & Rights.
A biological father who is not married to the biological mother of a child my acquire full Parental Responsibilities & Rights in respect of the child in terms of Section 21 of the Children’s Act 38 of 2005 based on certain criteria.
Holders of Parental Responsibilities & Rights may, on a voluntary basis in terms of Section 22 of the Children’s Act 38 of 2005 enter into a Parental Responsibilities & Rights Agreement with any other person but it needs to be done in writing in the prescribed format and will only take effect once registered with the Family Advocate or by High Court Order.
Any person having an interest in the Care, well-being or development of a child can apply to specific courts to have Care, and or Contact and or Guardianship assigned to them in terms of Sections 23 and 24 of the Children’s Act 38 of 2005.
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PARENTING PLANS
A Parenting Plan is a written document which covers various aspects regarding the Care & Contact of minor children when the child’s parents are not living together. Such as in the case of divorce or separation between the child’s parents or when the parents never married.
A Parenting Plan may typically include decisions around: Where the children will mostly live, how and when the children will have Contact with the parent they are not living with or any other person of importance to them (weekdays, weekends, holidays, special days), where they will be schooling, number and type of extramural activities, religious and cultural activities and ceremonies, how new partners will be introduced to the children, discipline, maintenance, nutrition, special needs, medication, medical care and medical aid, language, shared values and norms, routines in both homes, safety, division of parenting tasks or responsibilities etc.
For some families, Parenting Plans require to be very structured and in-depth whilst for others it is not necessary. It depends on the unique circumstances of and relationships in each family, as well as the level of conflict between the parents if any.
When is a Parenting Plan necessary?
Sections 33(1) and (2) of the Children’s Act 38 of 2005 explains that a Parenting Plan can be voluntary or mandatory:
Parents may agree on a Parenting Plan if they want to.
However, whenever there is a dispute or difficulties regarding the exercising of Parental Responsibilities & Rights, a Parenting Plan must be mediated before seeking the intervention of a Court.
This applies to parents currently going through a separation or divorce as well as parents who may have been apart or divorced for many years but are struggling to co-parent successfully.
Will my Children Participate?
In general, Section 31(1) of the Children’s Act 38 of 2005 states that in any matter concerning a child, consideration must be given to the views of the child.
Regulations 8(3), 8(4) and 11 specifically refers to child participation in the development of Parenting Plans. It states that a child’s views and wishes need to be considered and the child must be informed of the content of the Parenting Plan. If the child is not in agreement of the content of the Parenting Plan, then it needs to be recorded on the agreement and referred to a Social Worker or the Family Advocate.
For these reasons, on the regulatory forms which need to accompany a Parenting Plan, the mediator specifically must confirm that the children have participated.
Where do I get a Parenting Plan?
Section 33(5) of the Children’s Act 38 of 2005, directs parents who want to have a Parenting Plan to approach the family advocate, social worker, or psychologist for assistance with a Parenting Plan.
However, where parents are unable to agree on a Parenting Plan, the Parenting Plan needs to be Mediated by a social worker or other suitably qualified person.
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Formalities
Sections 33 and 34 of the Children’s Act 38 of 2005 stipulates that Parenting Plans:
Must comply with the Best Interest of the Child as set out in Section 7.
Must be in writing and signed by the parties.
Can be made an Order of Court. The Application must be accompanied by the Parenting Plan and certain regulatory forms.
Can we make changes to the Parenting Plan?
Typically, any Parenting Plan will have a review date included as circumstances may change as the developmental needs of the children bring about different needs which need to be catered for. However, the Parenting Plan can be reviewed at any time.
Internationally, it is common practice for Parenting Plans to be revised on the intervals listed below for each developmental phase of the children:
0 to 4 years every 9 months
4 to 12 years every 12 months
12+ years every 2+ years
Parties can contact the person who assisted them with or mediated the Parenting Plan. The Children’s Act stipulates the processes which need to be followed when changes are made to a Parenting Plan which was made an Order of Court.
MAINTENANCE - AS PART OF PARENTING PLAN
One of the major disputes in families, where children are involved, is about the Maintenance of the children.
The Maintenance Act 99 of 1998, Section 15 (1) states that the child’s parents have a duty to support. Section 15(2) continues to explain that this duty needs to be reasonable for their proper living and upbringing and include accommodation, clothing, food, medical care, and education.
Section 15(3) requires the following to be considered and this will be viewed to be fair:
The duty is the responsibility of both parents jointly.
The share of their obligations is to be apportioned by their respective means.
The duty to support is irrespective of whether the child was born in or out of wedlock, first or subsequent marriage. Each child will be viewed as equally important irrespective of the ranking of the child in question in the family constellation.
There is a three-part test:
Is there a legal duty on the part of the person who is asked to pay maintenance?
Does the child need maintenance?
Can the person afford to pay?
The Decree of Divorce or an Order made by the Maintenance Court will stipulate the amount of Maintenance payable. Depending on which Court granted the Order in respect of Maintenance, the Court may be approached to amend same. This is often needed as circumstances and the cost of living changes.
A Maintenance Agreement can also be mediated as part of the review of a Parenting Plan.
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ADULT/ELDERLY CARE DISPUTES
Often disputes arise between adult children and their “elderly” parents regarding their care position. For example, the children believe their parents need to be accommodated in a care facility and the parents refuse to let go of their perceived independence. Disputes may also arise between the siblings as to who is in the better position to resume the care of their parents, curatorship and power of attorney applications.
Allegations or concerns about the mental health, substance abuse or any other addiction of a family member and the resultant concerns for their ability to take care of themselves or the perceived risk to other family members may fuel conflict as they are often in denial.
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EXTENDED FAMILY DISPUTES
Disputes frequently arise between one spouse and the “in-laws” or where family members just do not get along due to allegations of interference, lack of boundaries, financial support or lack thereof, substance abuse and, contenting of Wills so forth.
In terms of Sections 23 and 24 of the Children’s Act 38 of 2005, any other person having an interest in the children may apply for specific Parental Responsibilities & Rights. For example, a grandparent who wants to have Contact with the grandchildren can bring such an Application before the Court when the parents refuse such Contact.
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FORENSIC INVESTIGATIONS
“Peace cannot be kept by force; it can only be achieved by understanding. Every conflict we face in life is rich with positive and negative potential”
– Albert Einstein.
CARE & CONTACT
If Mediation fails or when Mediation is not suited due to the nature of the allegations made against any parent, then an investigation into the Best Interest of the children is carried out.
In many high conflict divorce matters, the disputes are around the Primary Care of the children and or the nature and extent of their Contact with their other parent. In the process various (serious) allegations are often made against each other.
The adversarial system of litigation tends to escalate conflict between the parents. In addition, the litigation process is time consuming, often resulting in delays around decision making:
“It is said that the most dominant factor in a child's psychological and social adjustment after a divorce is not necessarily the divorce itself but rather the frequency and intensity of the parental conflict prior to, during and after the divorce… They also suffer when their parents cannot make timely, child-focused decisions on issues that affect them. (De Jong)
A Care & Contact Investigation is:
Carried out by a Registered Social Worker with the relevant knowledge and experience.
The Social Worker compiles a report, with recommendations on the findings of the independent investigation. This report may be made available to the Court.
Requested by either or both parents or their Attorneys. The Court may also Order for a forensic investigation to be carried out (Court Ordered) or appoint a specific Social Worker (Court Appointed) to carry out such an investigation.
The focus of a Care and or Contact Investigation is to determine the Best Interest of the children as it is described in Section 7 of the Children’s Act 38 of 2005 and to portray the views of the children as described in Section 10.
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URGENT APPLICATIONS
An Interim Court Order can be made by the Court. Such Applications are commonly brought before the Court after the Divorce Summons has been served and there is an urgent dispute over the Primary Residence, Contact arrangements and Maintenance needs of the children. It may also relate to relocation disputes, passport applications and so forth. The Social Worker may be requested or instructed to carry out an investigation regarding interim arrangements in the Best Interests of the children pending the finalization of the matter.
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SUBSTANCE ABUSE COMMITTALS
Social Workers are often requested to investigate if a person has a Substance Abuse Disorder and in need of treatment. If the person does have a Substance Abuse Disorder and poses a threat to him/herself or any other person, a report in terms of Section 33 of the Prevention and Treatment of Substance Abuse Act 70 of 2008 is written with recommendations to commit this person into a rehabilitation centre, in terms of Section 35(7) of the said Act.
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OTHER SERVICES
SUPERVISED CONTACT
Holders of Parental Responsibilities & Rights, for various reasons, may believe it is necessary for the other parent’s Contact with the children to be Supervised. In many situations such Contact is then Supervised by the other parent or an extended family member. This may be deemed necessary if the other parent has been absent and or not abreast with the routine and care needs of the child, usually when the child is still very young.
If there is no agreement on the need for Supervised Contact between the parties or that it is perceived that “the other parent just wants to control them”, then Attorneys may come to an agreement between the parties that a Social Worker Supervises specified Contact. The Social Worker then provides a report on whether indeed a need for Supervised Contact exists or not.
In some instances, a Court may Order that a parent’s Contact with the children needs to be Supervised (Court Ordered) or the Court may appoint a specific Social Worker (Court Appointed) to Supervise such Contact. The Social Worker will then Supervise the Contact and provide a report to the Court hereon.
The Children’s Act 38 of 2005 describes some instances when Supervised Contact is necessary. These include assessing the risk to a child in the care of a parent (flight risk, any form of abuse, substance abuse, exploitation, skills of the parent).
It sometimes is necessary to Supervise Contact to ensure a Court Order is implemented typically where there are allegations of frustration of Contact or to facilitate Contact after a period of absence of the parent.
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PARENTING COORDINATION
In situations where holders of Parental Responsibilities & Rights are unable to co-parent, a Parenting Coordinator or Facilitator, may be appointed by the Court to facilitate the implementation of a Court Order. Any of the terms Case Manager, Facilitator and Parent Coordinator may be used to describe this role.
“Parenting coordination is a form of alternative dispute resolution processes in which a mental health professional or family law professional assists in on-going high conflict co-parenting matters. These professionals try to resolve pre- and post-divorce disputes, including parenting plan or child related disputes”. (Corneli)
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“The primary purpose of parenting coordination is to reduce the negative impact of high-conflict parenting disputes on children and to protect and sustain safe, healthy and meaningful parent-child relationships. It appears that the best way to achieve this objective is to move conflicted co-parents into parallel co-parenting, which is characterised by low engagement between co-parents. As conflict is dependent on engagement, lowering co-parents' engagement with each other also lowers the opportunity for conflict…But most importantly, as parenting coordination lessens the conflict between their parents, it reduces the harmful effects of parental discord on children. It allows for a more harmonious, or at least a less hostile environment for children.” (De Jong)
“….The basis of a parenting coordinator’s appointment is either by a court order, a parenting plan or settlement agreement between the parties, which has been made an order of court. The court order or relevant clause of the agreement or plan stipulates the scope of the coordinator’s authority. The practice, which has evolved has given the coordinator’s the power to make decisions or directives regarding disputes, which is binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise”. (Corneli)