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Dispute Resolution in Family Law

Conflict and dispute-resolution mechanisms for parents


Parental Conflict
The Children’s Act states that in any matter concerning a child, an approach that is conducive to conciliation and problem-solving should be followed, a confrontational approach should be avoided, and a delay in any action or decision to be taken must be avoided as far as possible.

Parenting plans should be amicable accords between parties that will assist the separating family unit in the long term. Parents must work together to reach a joint agreement, rather than remain in conflict with each other. High conflict situations will have a negative effect on the family’s functioning, leading to dysfunction. The parenting plan usually contains a dispute-resolution clause whereby a facilitator can be appointed. This is a somewhat controversial concept. The facilitator is normally appointed with the agreement of both parties and is usually a qualified clinical psychologist specialising in dispute resolution in broken homes.

​The facilitator has the power to:
  • facilitate joint decisions in respect of the children;
  • regulate, facilitate and review the contact arrangements in respect of the child;
  • make recommendations on any issue concerning the welfare and/or affecting the best interests of the child;
  • issue directives binding the parties on any issue concerning the welfare and/or affecting their best interests of the child (subject to a court of competent jurisdiction holding that such directive is not in the child’s best interests);
  • resolve conflicts relating to the clarification, implementation and adaptation of the parenting plan;
  • require the parties and/or the child to participate in psychological evaluations or assessments;
  • engage the services of an expert professional to assist him/her to issue directives that have a bearing on the child; and
  • co-opt the services of a co-facilitator when reasonably necessary.
 
In so far as a facilitator has the power to make decisions in respect of a minor child, the power must be exercised in the best interests of the child and will be binding on the parties, unless the High Court, as upper guardian of children, orders otherwise.

A facilitator’s services involve elements of mediation, expert opinion and counselling, but do not purely fall into any of these categories. The facilitator is not appointed as a psychotherapist, counsellor or attorney for the child or the parents. No therapist/patient or attorney/client relationship is created or otherwise exists between the facilitator and any of the parties involved. The facilitator’s fees are normally shared between the parties.
The facilitator will follow a procedure to resolve disputes and/or may issue directives when the parties are unable to reach agreement on any issue where a joint decision is required or where the child’s welfare has become contentious. If such a dispute arises, it must be referred in writing to the facilitator who will attempt to resolve the dispute as speedily as possible and without recourse to litigation.

If the facilitator is unable to resolve a dispute by way of mediation, he/she may resolve the dispute by issuing a directive, which will be binding on the parties subject to the provisions therein. Both parents, and the child if necessary, will participate in the dispute-resolution process as requested by the facilitator.

The facilitator will conduct informal proceedings, and is entitled to receive information via telephone, correspondence, email, etc. The facilitator will use his/her discretion in considering the weight and sufficiency of information provided, and may expand the enquiry as he/she deems necessary.
​
The facilitator will determine the protocol of all communications, interviews and sessions, including who must attend meetings, but parties will be permitted to consult their legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys will have the right to initiate or receive oral communication from the facilitator. Any party or counsellor may communicate in writing with the facilitator provided that copies are given to the other party and, if applicable, their legal representatives.
​
The facilitator may confer individually with the parties and with others, including but not limited to step-parents, step-siblings, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers and healthcare providers for the child and therapists for the child and the parents. The parties must authorise such persons to provide information to the facilitator.

Experiencing problems with a mediator or facilitator? 

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BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting Wife
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities