Family Law: Child-Inclusive Mediation

Ensuring your Child is a Participant in the separation, not a Victim.

When dealing with separation between parents, children are often bypassed in an attempt to protect them from the anguish that comes with formal divorce procedures and squabbles over parental plans. However, exclusion from the process often leaves children without a clear understanding of their parents’ separation and the implications it will have in their daily lives. The legislature has thus attempted to enact legislation to encourage the involvement of children when it comes to finalizing parenting plans, guardianship, care, and contact.

In terms of s6(4)(a) of the Children’s Act (the “Act”), in any matter involving a child –

An approach which is conductive to conciliation and problem solving should be followed and a confrontational approach should be avoided.

When family issues arise, particularly when minor children are involved, it is important that children are given an opportunity to voice their opinions and have their concerns considered, this can be effectively achieved through child-inclusive mediation as provided for in Section 10 of the Act, which reads as follows –

Every child that is of such an age, maturity, and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

A study reported in January 2021 by Arizona State University Research and Education Advancing Children’s Health (REACH) Institute, has shown that divorce not only affects children at the time of the action, but often has far reaching repercussions into their adult lives. It is through mediation that children can be afforded the opportunity to participate in establishing the parenting plan, which ultimately ensures greater stability, acceptance and adherence to contact and care arrangements.

Child-inclusive mediation is the process in which an independent third party facilitates negotiations between disputing parents, with the primary goal of guiding them to a mutually beneficial settlement agreement that is in line with the requests of the children involved. The mediator is an impartial, outsider to the dispute and will ensure the redress of any power imbalances, intimidation, or threats. Child-inclusive mediation promotes the best interests of the child by forcing the disputing parties to put the child’s interests at the forefront of the negotiating table.

A decision reached through mediation is not binding on parties until the settlement agreement, formed in this process, is made an order of court. Mediation provides parties with an opportunity to address private family concerns by means of a future-orientated approach whereby parties are discouraged from blaming each other and are rather motivated towards establishing an agreement that works in favor of both parties as well as the children involved. This future orientated approach improves the adjustment of children into a new family dynamic and helps them to accept the circumstances of separating parents.

It should, however, be noted that children should not be included in every aspect of mediation between parents. A mediator will indicate at which stages children should be involved, taking into account factors such as the individual child’s age, maturity and stage of development. Generally, children between the ages of 7 – 17 years old should be exposed to the mediation process. When including children, reassurance should be given that they are not choosing between their parents, nor are they required to make any final decision. The mediation process is merely a means to involve them in the process and aid in their reception of the family setup in which they find themselves.

Through child-inclusive mediation, parents are exposed to the perspectives of their children and thus are better equipped to cater for each child’s developmental needs at appropriate stages, thereby creating greater security and harmony to all parties involved. This shift in perspective often results in less conflict and more amenable attitudes between parents, particularly when finalising an agreement that will best serve their children’s needs as well as their own.

Outlined below is a rough guideline of what to expect in the mediation process –

  • Orientation and introductory stage
  • The parties are introduced to the concept of mediation.
  • Certain ground rules are laid down.
  • Each party gets an opportunity to put their case to the mediator.
  • Information-analysis stage
  • All relevant information is laid out on the negotiating table.
  • The parties then systematically, with the assistance of the mediator, isolate the actual issues in dispute.
  • Issues in dispute are recorded in writing.

Often, parties will come with thinking the dispute deals with one thing, however after doing this stage with the mediator, the dispute is in fact about something else.

  • Negotiation or agreement stage
  • Parties, with the assistance of the mediator, come up with a resolution for their disputes that were outlined during stage 2.
  • Settlement stage
  • All proposals made are summarised and clarified.
  • All the options are evaluated and reviewed.
  • Both parties are expected to make compromises in order to reach the settlement.
  • Contracting stage
  • Results of the negotiating and settlement stages are put into a settlement agreement and signed by the parties (this agreement will be made an order of the court).

Written by Megan Manley

For any assistance or guidance contact Stephen Duffett at sduffett@dkvg.co.za

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.

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