Important issues to ensure a successful mediation

The most important issues to ensure a successful mediation are:

Procedural fairness – each party must feel that they have been given the right to be adequately heard.

Full and open disclosure of financial issues;

Mediator neutrality;

Confidentiality of discussions – a safe space is to be created and held so that all aspects necessary to bring about a resolution can be explored;

Freedom to terminate the mediation at any time;

The skill of the mediator.

Parties being properly prepared and advised for mediation.

Parties understanding their right to contract advisors of their choice during the process eg. lawyers, counselors, therapists, financial/spiritual advisors.

WHEN CAN MEDIATION BE USED

• Divorce
• Maintenance – child and personal
• Custody/access/visitation disputes
• Proprietary disputes
• Post-divorce disputes eg. which school a child must go to.
• Permanent relationship disputes
• Same gender relationship disputes.

MEDIATION IN ACT 28 OF 2005 The object of the children's Act as set out in Section 2 is that: best interests of the child are of paramount importance, to make provision for structure, services and means for promoting development of children; to strengthen and develop community structures and to generally promote the protection and well-being of children. In Section 6, general principles are set out to assist in implementing the legislation and guiding proceedings, actions and decisions concerning a child. The Act recommends that a confrontational approach and delays are to be avoided. Section 7 relates to the “best interests of the child standard” and this Section is relevant with regard to mediation as specific provision is made for action or decisions to be taken which “would avoid or minimize further legal or administrative proceedings in relation to the child”. Mediation is similarly envisaged in Section 29 which relates to court proceedings as Section 5(a) provides that a court may, for the purposes of a hearing order that “a report and recommendation of the Family Advocate, Social Worker or other suitable qualified person must be submitted to the court”. Therefore should the parties reach agreement through the mediation process, that mediated agreement would be referred to and taken into consideration by the court.

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