This article appeared in the Sunday Times about 4 years ago regarding mediation for couples divorcing. Somehow the press realized divorces could be mediated.
Divorce agreements have been mediated for years and remedial action for disputes thereafter to be mediated before litigated.
People need to understand that navigating Family courts is not what it is perceived it to be. They are putting a band-aid on a seeping wound, in fact, often lawyers, mediators, social workers, and courts infect the wound with septicemia.
This was my comment in the article.
"The concept paper is brilliant but like all things implementation is imperative, our government has a poor history in implementing brilliant concepts and legislation, we just have to look at our Constitution. Many people still do not know the significance of the Bill of Rights, where to find it, and why this is, across the socio-economic spectrum. This remedial action should be part of marriage contracts, co-parenting should be the norm in antenatal classes, the high divorce rate is a reality and post-marriage should be discussed so that parents are better informed should it happen".
Let's be honest, who goes into a marriage thinking about divorce other than when considering the marriage contract, and that is mainly influenced by protecting current or future wealth.
I have become a lot more informed and I would have responded differently had this been posed today.
If couples separate and it is mostly amicable then divorces can be successfully mediated to the benefit of both parties in a short period of time.
With the high rate of domestic violence we can't ignore DV in divorces, most victims say they were not heard in mediation (private mediators and lawyers) and to move on, they are told to put the past behind them. Victims are coerced into not pursuing protection orders as it will cause ongoing conflict.
The research shows us that the abuse does not stop, often it escalates. Post-relationship abuse is often worse because it is more covert and people are ignorant about the kinds of abuse post-relationship, and the immediate and long-term impacts.
Coercive controlling behavior has devastating consequences and many people in the value chain are complicit and perpetrators in the abuse.
If mediating Domestic Violence cases within the court system is tantamount to malpractice and it defeats the objectives of the Domestic Violence Act as per the recent directive issued as a result of our lobbying against mediation in DV cases we need to now focus on mediating divorces, co-parenting, and maintenance.
Domestic violence is domestic violence and there needs to be policies and directives about ALL forms of domestic violence in ALL SITUATIONS
There needs to be proper legislation informing the criteria for qualifications for mediators and which cases are suitable for mediation. This can't be discretionary because those who have discretion are not always suitably qualified to be discerning about DV.
In addition, we have to be cognizant of the unequal socioeconomics of South Africa, many do not have the financial means to pay mediators, and it is unconstitutional to prejudice or exclude a person based on their economic situation. The Family Advocates Office which is state-funded and free should be more accessible to more people like the CCMA. The Office of the Family Advocate already faces challenges due to the lack of resources.
I am not against mediation, if used correctly by qualified professionals in the right circumstances it produces great outcomes.
I AM AGAINST MEDIATION BEING PUSHED as the best solution especially when the agreement is facilitated by mediators with minimal qualifications and training. When agreements are signed with consent (often coerced) by both parties and made an order by the court it is legally binding. It is not mandatory to have a legal qualification to be a mediator.
The fact that our courts are overburdened and under-resourced is being used to manipulate people into agreeing (coerced) to mediation in family matters.
Definition of adversarial (of a trial or legal proceedings) in which the parties in a dispute have the responsibility for finding and presenting evidence.
"an adversarial system of justice"
The court requires evidence, but mediation does not, abusers are master manipulators, and manipulating mediators and court officials is a slam dunk for them.
Civil Court is unemotional and in most cases agre, an agreement is reached before court dates. DV is a criminal offense, emotional abuse by it's its nature is emotional so to minimize the covert non-physical violence goes against the intention of the DV Act.
A full risk assessment should be mandatory for all family matters that require intervention or finalization.
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