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F.A.Q

1. What is mediation?
Mediation is a process where people appoint a third party to help them resolve disputes between themselves:

Mediation is not a court hearing.

The mediator is not a judge.

Mediation is not counseling or therapy.

4 Fundamental and universal characteristics in the mediation process

The impartiality of mediators

The process are voluntary – the mediator has no power to inflict a settlement

The relationship is confidential between the mediator and the parties

The procedures are flexible to the needs of the parties

Goals of mediation

To reduce, resolve and manages conflict

To make appropriate decisions to deal effectively with this conflict

To provide a plan that serves the best interest of the child/children involved

2. Which situations are suited to mediation?

Where parties are in conflict but will need to have a affiliation in the future.

Where limited time is available, parties are highly stressed and emotional and big decisions needs to be made

In all situation where children are involve and the best interest of the child are upfront in impotence

3. What are the benefits of mediation?

The best interest of the child can maintained in accordance to the Best interest of Child Standard

The Mediation  process is time saving, cost saving and helps build further relationship to ensure the best interest of all parties involve

Parties speak for themselves with no layer making statement on their behalf .

There is clarity on what you agree on

4. Are the children part of the process?


Legislation demands facilitating the child during the mediation process to ensure that the care, protection and well-being of a child are strived for in accordance to the best interest of the child standard.

The children’s act, Act 38 of 2005  Section 6(5) of the act states “ a Child, having regard to his or her ages, maturity and stages of development must be informed of any action or decision taken in a matter concerning the child, which significantly effect the child”.

Section 10 of the Act states “ Every child that is of such an ages, maturity and stages of development as to be able to participate in any matter concerning that child, has the right to participate in a appropriate way and the views expressed by the child must be given due consideration.”

Section 14 sates:”every child has the right to bring and to be assisted in bring the matter to court”

It is thus clear that the roll of the child is emphasized in the children’s act.

The mediator conducts a structured individual interview with each child canvassing the child’s experience of his/her situation. This is not an assessment. This is usually conducted from approximately age 4 years. Older children complete the children’s questionnaire. Children do not attend joint sessions with their parents during the mediation process. Once agreement is reached, the mediator communicates the outcome of the mediation to the children. This is done in consultation with the parents.

5. What are the costs?
The cost of mediation can be claimed form a Medical aid if the mediation id done by a registered mediator that is a qualified social worker or physiologist. Cost is normally divided equally between the parties, unless some other arrangement is expressly agreed to by both parties. The cost of each session is payable one day before each session.

Pending on the intensity of the conflict the mediation process may total 4 sessions in order to establish a successful parenting plan and residential plan. This excludes the consultation with the children.

6. What is a residency plan  and contact ?


Residency plan helps to provide a clear indication of with how the children will live and when. In broad terms there are two possibilities:

Prim residency        -  The children reside with one parent and have times that are clearly defined of contact with their other parent.

Shared residency   -  is a residential option that parents exercise, sharing time on a relatively equal and defined basis between the two newly established households.

A defined and reasonable residency plan result in definition and structure all parties involve in the divorce process.

The residential plans are establish to :

Minimize possible conflict between parents

For parents to continue to have a bounded relationship with their children.

To develop co-operative parental relationship, which is separate from the original spousal relationship?

Children are ensuring they will have contact with both parents.

To ensure that children will have consistent contact with the non-residential parent on established and appropriate times.

Checklist for a residential arrangements (Recognition to Dr Ronel Duchen familyzone)

“Is the arrangement adequately defined in order to minimize the need for telephone calls and negotiations between parents? It is not enough to state that the non-residential parent will have contact on alternate weekends. Times and days need to be specified. In some instances it is necessary to define the place of collection and return and who would be responsible for these aspects.

Is the arrangement an accurate reflection of the non-residential parent’s relationship with the minor children? Realistically it does not make sense for a non-residential parent to have input in the children’s lives on 4 out of 30 days per month. Both parents need to be in a position to maximize their input in the children’s lives unless there are compelling reasons to indicate otherwise.

Is the arrangement appropriate for the ages of the children in question? For example a two week old baby cannot spend a weekend away from the primary caregiver. Adolescents will have their own social schedules to which both parents are secondary role-players and an alternate weekend arrangement might not suit them at all.

Some consequences of inappropriate residential arrangements are the following:

Children are exposed to ongoing arguments and conflict. This aspect has a ripple effect on children’s emotional, social and scholastic adjustment during and after divorce.

Applications for Family Protection Orders, warrants for arrests, arrests and trauma for all involved.

The extent of damage done to the parental relationship could be so far reaching that the establishment of a post-divorce co-operative parental relationship is unlikely. The quality of the parental relationship has been identified as a critical factor that will determine children’s long-term adjustment after a divorce. If this relationship is compromised the children’s’ long-term psychological well-being will be negatively affected.

The relationship between the children and their respective parents could be negatively affected.

7. What is a Parenting Plan?


A parenting plan is a document that structures how shared parental responsibilities’ and rights will be conducted between relevant arties – this may or may not include grandparents – all people that are currently “staking” that they are involve in the children welfare.

People involve in the wellbeing of a child other than the biology parents are called co- holders’ s of parental rights and responsibilities

Included in a parenting plan is:

Any matter in connection with parental responsibilities and rights

Residency

Contact between the children and the parties or any other person

Maintenance

Schooling

Religious upbringing

The conditioning of the parenting plan needs to comply with:

The best interest of the child standard as set out in the Children’s Act.

The Plan must be in writing and signed by the parties

It may be registered with the Family Advocate or made an Order of Court

To prevent a parenting plan becoming “outdated” it is recommended that the procedure of reviewing the plan is stated in the original parenting plan.

Once an agreement is reached, it is advisable that both parents take the agreement to their legal representatives for review. Unrepresented parents may opt for other strategies at this point.

In high conflict divorce cases it is recommended that to register the parenting plan with the court.   Parenting Plans that are registered at court are court orders and subject to the same rules as any other court order. This implies that the court could be approached if the terms of the Plan are violated.

All plans should be registered with the family advocates office to create a proper paper trail and to formalize and finalizing the process.

8. How do I prepare myself for mediation?
It is difficult for parents to walk into the mediation context and to negotiate the further especially their children without being prepared. A questionnaire will be send to you before a joint interview to proved you with a basic to prepare before a joint interview with related parties are conducted

In a joint session it will be held to determine what the goals he parent would like to achieve in during mediation. Common goals are to develop:

Communication strategy

Conflict resolution strategy

Mechanisms for the exchange of information

Residency and contact plans

Mechanism for updating or reviewing the agreement

After the joint interview an Individual Preparatory Interview with each parent will be conducted. The duration of this structured interview is approximately 1 hour. The purpose of the interview is to obtain necessary background information, identification of issues, needs and interests, search for common ground and obtain and list agenda items for inclusion in the consolidated agenda and final Parenting Plan or agreement.

However to help you to feel more in control of the process the following steps can be followed to clarify you own goals by in writing establish:

what the dispute points are

what the other party’s desire, concerns fears are

what your own desire concerns and fears

what you think could be possible solutions and the implication of these solutions

If children are involved:   What are the child’s likes and dislikes /routine / educational expectations /spiritual upbringing /holidays etc.

9. What is best interest of the child standard ?


The Best Interest of the Child Standard is presented in section 7 of the Children’s Act 38 of 2005. Section 7 states the following.

7. (1) Whenever a provision of this Act requires the best interests of the child standard
to be applied, the following factors must be taken into consideration where relevant,
namely-

the nature of the personal relationship between-

(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those circumstances;

the attitude of the parents, or any specific parent, towards-

(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;

the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-

(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

the need for the child-

(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;

the child’s-

(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) an other relevant characteristics of the child

the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

any disability that a child may have;

any chronic illness from which a child may suffer;

the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

the need to protect the child from any physical or psychological harm that may be caused by -

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behavior; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behavior towards another person.

any family violence involving the child or a family member of the child; and

which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

 

 

 

 

 

 

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