Mediation & the Role it plays for our Children
Article Date: 30 August 2018
By Abigail Ormsby
To start, what is Divorce & Family Mediation? It is a collaborative decision making process, whereby an impartial, professional Mediator helps the parties to the divorce voluntarily negotiate a divorce settlement in respect of the issues in dispute, which issues often include the maintenance, contact and care of the minor children.
A mediated settlement will ensure that the best interests of the children are taken into account in respect of all matters pertaining to the minor children.
The Children’s Act no 38 of 2005 (“the Act”) sets out that :
- The best interests of the child are paramount;
- The voice of the child must be heard (depending on age and maturity);
- The views and wishes of the child should be considered;
- The child should be informed of the content of the parenting plan;
- The child should be informed that he/she can ask for changes in the plan and the process should be explained;
When considering the effects of divorce on children it is important to note that every child, no matter their age, will be at a different stage of development and may react differently to the divorce process. For example, a 3 – 6 year-old may feel responsible for their parent’s divorce, whereas a 6 - 11 year-old may experience loyalty issues between their parents and may blame one parent for making the other parent leave the family home. Therefore, it is important to consider at what stage of development the child is at, and then consider the options on how to make your child feel the most comfortable and at ease. The Divorce process has been found to be an extremely stressful experience for all children. Children often are confused and frightened about the situation and feel a loss of security and comfort. Therefore, it is strongly believed that the model of mediation is there to promote co-parental cooperation, reducing conflict, and improving communication, all of which are important to a child’s development into a well-adjusted adult.
Research shows that children of mediating parents are better adjusted to the divorce process than those of litigating parents. Section 6(4) of the Act states “In any matter concerning the child, an approach conducive to conciliation should be followed and confrontational approach avoided”.
Furthermore, Section 9 of the Act states that "in all matters concerning the care, protection, and well -being of a child, the standard that the best interests of the child is paramount must be applied”.
One way to hear the voice of the child is through the Child Interview with the Mediator and/or child psychologist. Most parents believe that their children are coping through the divorce process but only really get to hear how they are truly feeling through the interview. This gives the child a chance to express their views and feelings and to let their parents know how they feel. It is important that it’s done in a non-adversarial manner where the child can feel as comfortable as possible.
The Advantages of mediation are:
- Divorce and Family Mediation aims to preserve relationships between the divorcing parties which may be destroyed by the aggressive nature of litigation. The parties therefore avoid nasty, costly and emotionally taxing trials, and keep the decision-making process in their hands and not in that of a judge in a courtroom.
- Mediated settlements, parenting plans and maintenance agreements tend to be a more stable base as they have been designed and mutually agreed to by the divorcing parties and not handed down to them by a judge.
- It pin points the issues in dispute and assists the parties in settling these issues in their best interests and more importantly, in the best interests of their minor children.
In conclusion, much research has shown that children thrive in a non-adversarial environment when it comes to their parents getting a divorce. One model that promotes this non-adversarial environment is Divorce and Family Mediation, whereby the Mediator promotes communication, promotes a mutually agreed upon settlement, and draws attention to what is in the best interest of the child, as well as minimizing as much as possible the negative effects that divorce can have on children.
1. Gauvreau & Linton. (2012) Mediation versus Litigation: Examining Differences in Outcomes amongst the Children of Divorce.
2. Childrens Act no 38 of 2005
|1. South African Data Privacy Law: Certain provisions of POPI coming into force (17 July 2020)|
|2. Mediation & the Role it plays for our Children (30 August 2018)|
|3. Step by Step Guide to Mediation in the Magistrates Court (29 August 2018)|