AFRICAN-STYLE MEDIATION AND WESTERN-STYLE DIVORCE AND FAMILY MEDIATION: REFLECTIONS FOR THE SOUTH AFRICAN CONTEXT

Both Western-styled mediation and African-styled mediation are practised in South Africa. Each of these models is applied in specific social contexts. In this article a brief explanation of what is meant by the term divorce and family mediation is provided.  Thereafter the principles and processes of both Western-styled divorce and family mediation and African-styled group mediation are explored. Attention is given to the roles of mediators in both of these models as well as the ubuntu-styled values found in African group mediation. In Africa, there is a tradition of family neighbourhood negotiation facilitated by elders and an attitude of togetherness in the spirit of humanhood. Both of these show a commitment to the community concerned and a comprehensive view of life. In Africa conflicts are viewed as non-isolated events and are viewed in their social contexts. Not only are consequences for the disputing parties taken into account but also consequences for others in their families. These methods can be found in present-day methods, which are either used independently of imported Western structures or used alternatively to such structures.  In this article the concept of mediation circles, as currently found in Western-styled mediation are also covered. Additionally, the provisions of the Children’s Act 38 of 2005 referring to mediation as well as the provisions of the Child Justice Act 75 of 2008 and family group conferencing in the realm of restorative justice in South Africa are  critiqued. It is suggested that divorce and family mediation can learn from the principles of restorative justice applied during family group conferencing as well as from African-styled group mediation.

Western mediation as it is currently practised in South Africa is a service profession.
Mediators need to be accredited by a professional body and mediation generally occurs in a formal setting. Usually the person who is the mediator has no prior relationship with the disputants. There is generally a mediation agreement that states the "ground rules" for the mediation process and sets out the roles and responsibilities of the parties to the mediation. There are recognisable stages that occur during the mediation process. The objective of Western mediation is that consensus is reached and that this gives rise to a settlement agreement. 3 Before examining Western mediation, the meaning inherent in "divorce and family mediation" should be examined. Mediation is one of the primary processes of alternative dispute resolution. In mediation a neutral third party (the mediator) mediates (acts as a go-between, facilitates) the conflict between parties in order to assist them in reaching a mutually acceptable agreement. This agreement may take the form of a settlement and the settlement may be made an order of court if the parties want to do so. 4 1 Faris "From Alternative Dispute Resolution. 1. 2 Faris "From Alternative Dispute Resolution" 1. 3 Faris "From Alternative Dispute Resolution" 1. 4 Singer Settling Disputes 20; Van Zyl Divorce Mediation 142; and De Jong "Child-focused Mediation" 112.
Family mediation takes place where there is a dispute between family members, including divorce and post-divorce matters. 5 For example, mediation can be used for a couple who are not married to each other but living together and want to reach an agreement regarding the division of property; where siblings who need to maintain their aged parents want to reach an agreement in this respect; or between a child who has reached the age of majority and is claiming maintenance and the child's parents.
Western-style divorce and family mediation is based on general principles. 6 There are numerous advantages to the practise. 7 Various concerns regarding Westernstyled mediation are also found. 8 Stages (or steps) are followed during the mediation, 9 which can accommodate various styles. 10 5 In family mediation the mediator tries to help the parties reach a mutually satisfying agreement that recognises the needs and rights of all family members: De Jong "Child-focused Mediation" 112. "Divorce mediation" is a form of family mediation where the couple are divorcing, or involves matters related to the divorce of the couple. 6 For example, mediation occurs at the boundaries or under the "shadow" of the law: Levy and Mowatt 1991 De Jure 65; Clark 1993 THRHR 454; Yale L J 950; mediation is a multi-stage process: Van Zyl Divorce Mediation 156; mediation is generally private and confidential: Roberts Mediation in Family Disputes 95; mediation is a multidisciplinary field; the mediator is impartial: Parkinson Family Mediation 13-14 and the parties control the outcome of the mediation, the mediator does not make decisions for the parties: Scott-MacNab and Mowatt 1987 De Jure 50. 7 These benefits include avoiding litigation; giving parties more control over the decisions made in their case, and time and cost-savings: Van Zyl Divorce Mediation 191;and Stintzing Mediation 48. 8 Amongst these are that mediation may be unsuitable in certain instances, for example where there is a risk of child abuse or alcohol, drug or mental health problems: Van  facilitated by elders and takes place in "an attitude of togetherness" and "in the spirit of Ubuntu". 13 African group mediation shows a commitment to the community and a between the parties -multi-generational family mediation may occur in this type of mediation. See Cooper and Brandon 2007 Aust J Fam Law 292-293. In facilitative mediation the parties are encouraged to reach a settlement within a range of likely outcomes and the mediator is usually an expert in child and/or family law. The facilitative mediator assumes that the parties understand their situation and can probably create better solutions than the mediator can. Faris 2006 CILSA 442. Transformative mediation is where the focus is on trying to change the dispute from a negative one into a positive event. The focus is on "empowering" the parties and "recognition" by each of the parties of the other party's needs, interests and values. Zumeta 2000 www.mediate.com;and Faris 2006 CILSA 446. Gestalt theory informs transformative mediation. Fundamentally it is concerned with two things. The first is the present, raising awareness about the self and one's environment in the moment, the here and now, dealing with the past as embedded in the present moment. The second is the "whole". Human beings seek to understand in an organised manner and everything that captures our attention is in the context of its background. The Gestalt theory is non-interpretive and non-judgemental. Its emphasis is on personal responsibility and it is holistic. Gaynier 2005 CRQ 405 indicates that according to this theory the intent of the mediator would be to "support the development of good 'contact' between the parties". "Contact" here means a meaningful exchange between the two parties, seeing one another's point of view and sympathising, viewing one's opponent as a human being with feelings, values and needs as valid as one's own. Contact means a shift in orientation towards the dispute and each other. In African mediation, conflicts are seen in their social contexts. They are not seen as isolated events and all relevant background information is covered during mediation.
During mediation not only are the consequences for the parties looked at but also the consequences for others in their families. 16 The traditional objectives of African mediation are to soothe hurt feelings and to reach a compromise that can improve future relationships. 17 The values that are upheld in African mediation are African humanistic values. 18 The Lekgotla/Inkundla is a group or public mediation forum. 19 The entire community is involved, the disputants and their family members, witnesses as well as members of the public. The mediation is conducted by the elders and the headman or chief.
relationships with other human beings… ubuntu signifies being as human and humane as can be, being as human oriented as can be, living in genuine human-ness, and humane-ness, together with fellow human beings". Ubuntu is "not knowledge which can be learnt in a classroom. Neither is it a skill that can be acquired in a training session… the air of the atmosphere provides a good comparison. Like an invisible but essential prerequisite for living, it constantly enters and energises us. Most of the time, as with breathing, we may not even be consciously aware of this influence entering us. But if we are privileged to live our daily life in a human environment where ubuntu is taking place around us, we may experience how the Ubuntu spirit is becoming a part of us… the ubuntu attitude may reach all our words and deeds. It is by such a silent but potent process that real human-ness can be nurtured into us… the internalisation of the implications and applications of Ubuntu is usually an extended process": Malan Conflict Resolution 89. Ubuntu may be understood as a "quality word, but especially as an event word, with relational implications" as indicated by Malan Conflict Resolution 88. The origins of the African dictum "I am, therefore I exist" is consistent with the Ubuntu dictum "I am because you are" or "I exist because you exist", "each part grows in the context of the whole, so that it does not exist independently, nor can it be said that it merely interacts with others, without itself being essentially affected in this relationship". See Nabudere Afrikology, Philosophy and Wholeness 30-33. 14 Malan Conflict Resolution 17. Ubuntu-style values are found in African-style mediation. 27 The essence of the African judicial system is reconciliation 28 and the restoration of harmony is more important than stating the rule of law. 29 The nature of the proceedings is informal and flexible, enabling litigants and witnesses to feel that "justice is done", and this leads to social harmony. 30 Harmony is important and rituals are performed to maintain it. 31 20 Faris "From Alternative Dispute Resolution". 21 Faris "From Alternative Dispute Resolution". 22 Obarrrio "Traditional Justice" 32-34. 23 Obarrio "Traditional Justice" 32. 24 Obarrio "Traditional Justice" 32. 25 Obarrio "Traditional Justice" 32. 26 Obarrio "Traditional Justice" 32. 27 Murove Theory of Self-interest 208-217. These values include an emphasis on communal belonging as per (Murithi 2006 JPAS 25) the importance of promoting good in our existence; the need to be sympathetic to the suffering of others; the need to consider the consequences of our actions on the present and the future; the fact that communication is important and that relationships involve the past, present and future (Choudree 1999 AJCR 11 taken into consideration, it can provide a meaningful, comprehensive perspective of a conflict; the insights derived from the social context may greatly increase the understanding of the origin of a conflict; all those in the discussion experience a growing awareness of the remote and immediate causes of the conflict; the social context can also improve the end of the conflict resolution process, if the purpose of the process is formulated in social, relational language; both short-term objectives and long-term aims may benefit from Africa's concern with relationships; parties need to adopt a mode of co-operation after the conflict; relationships that are broken need to be repaired; the stages of implementation and follow-up are more far-reaching. letting go of the desire for revenge (Murithi 2006 JPAS 29) the members in the community form a "uniting force" that could care for the wellbeing of others and recognise the needs of others in the community: Nyaumwe and Mkabela 2007 IAJIKS 155-157; when forgiveness is granted it generates goodwill and a renewal of social trust (Murithi 2006 JPAS 31) and it helps maintain social harmony and brings prosperity (Zulu 1998 OTE 187). Other advantages are that the emphasis is on the mending of relationships and the reconciliation of groups. (Choudree 1999 AJCR 16) the parties get to tell their stories and this allows them to be heard and to vent anger or frustration; the need to harmonise relationships at the macro-level impacts upon the greater whole (Choudree 1999 AJCR 25) the process is less intimidating to participants than Westernstyled courts; the majority of disputes are resolved through mediation within or between families, so only serious cases are referred to the traditional courts (Choudree 1999 AJCR 17) family processes are the preferred method of dispute resolution (Choudree 1999  The Children's Act specifies that in any matter that concerns a child, an approach that is conducive to problem-solving and conciliation should be followed, and a confrontational approach should be avoided. 45 (1) provides that if there is a dispute as to whether an unmarried father has fulfilled the conditions to acquire full parental responsibilities and rights, then the matter must be referred for mediation to a family advocate; social worker; social service professional or other suitably qualified person. The other "suitably qualified person" would be a professional mediator who is a member of one of the recognised body of mediators in South Africa and who has undergone a training course (s 21(3)(a)). S 33(2) stipulates that where co-holders of parental responsibilities and rights are experiencing difficulties in exercising their responsibilities and rights, those parties must first "seek to agree" on a parenting plan that will determine the exercise of their responsibilities and rights before seeking court intervention. A parenting plan sets out the parental responsibilities and rights of each party and may specify things such as with whom the child will reside; the maintenance payable for the child; contact with the child; and who may make decisions, regarding matters such as schooling and religion, as well as the way in which they should be made. S 33(5) stipulates that the parties must first seek the assistance of a family advocate, social worker or psychologist in preparing the parenting plan or mediation through a social worker or other suitably qualified person. to be heard by the court. 52 De Jong 53 submits that a "multi-generational model of mediation" that involves the extended family, including children affected by the proceedings, would probably be used. The Children's Act further provides that a court may make use of intervention services, which include mediation. 54 The Children's Act also contains provisions that imply that mediation should take place. 55 The Child Justice Act also provides for mediation. Although the context within which this occurs is that of criminal justice, and child justice and restorative justice in . These options include, for example, an oral or written apology; a formal caution, with or without conditions; a compulsory school attendance order; and a family time order. The plan must specify the objectives for the child and the period within which they are to be achieved; contain details of the services and assistances to be provided to the child and a parent (or appropriate adult or a guardian); specify the persons or organisations to provide the required services and assistance; state the responsibilities of the child and of the child's parent (or an appropriate adult or a guardian); state personal objectives for the child and for the child's parent (or an appropriate adult or a guardian); include any other matters relating to the education, on a plan then the conference will be closed and the probation officer must refer the matter back to the magistrate 77 for consideration of another option. 78 No information furnished by the child at a family group conference may be used in any subsequent criminal proceedings arising from the same facts.
According to Skelton and Zenobia,79  Some concerns exist regarding family group conferences. Amongst these concerns is that it takes a long time to set up family group conferences; they are lengthy in duration; it is an expensive process, due to the time and skills required for each case; 82 there is a need to harmonise the formal and informal systems; African models of conflict resolution worked well in homogenous societies where there was substantive equality between the parties, restitution and compensation was often linked to payments of goats or cattle and people could make these payments, but colonisation and apartheid have left a legacy of gross inequalities and urbanisation has led to the breakdown of the family and community. Another concern is that language difficulties may also emerge during family group conferencing. 83 employment, recreation and welfare of the child as are relevant; and include a mechanism to monitor the plan. See s 61 (6) These benefits are found in a combination of transformative and family inclusive mediation, but African conflict resolution goes beyond these models of mediation, as it includes Ubuntu-style values. All members of the community are entitled to participate in African dispute resolution, whereas in Western-style mediation circles this is not always so and many circles are "closed". Amongst the differences between Western mediation and African-style group mediation is that the customary process is non-adversarial and the emphasis is on a restorative outcome which benefits the whole community.
The African style of mediation shows that mediation can be value-based, communityoriented and directed towards a restorative outcome. 88 The Lekgotla/Inkundla can be remodelled in a modern setting as a circle for use in family and divorce mediation.
Depending on the circumstances, the mediator may conduct the circle according to 84  The divorce or family mediation must be viewed holistically. Social contexts must be part of a broader mediation process that may include visits to individuals' or families' homes, and mediators may become more personally involved with the parties than is usual in Western-style mediation. 93 Agreements reached during mediation should "include... more than merely solving the problem or rectifying the injustice" and need to aim for genuine conciliation and, where necessary, restitution and rehabilitation, 94 whilst adopting a mode of co-operation, honouring reciprocal obligations, 95 and supporting and encouraging parties as they go through the process of peacemaking. 96 It has been seen that elements of African group-style mediation are currently being applied in restorative justice in South Africa, particularly in the form of family group 89 Faris " From Alternative Dispute Resolution". 90 Paquin andHarvey 2001-2002 Fla Coastal L J 167, 186-188. 91 Mediation must also allow for the participation of children, in order to comply with international and South African legislation. 92 For example, mediation must be multi-generational where possible; storytelling must take place; mediation must allow for the venting of anger and the release of emotions; emotional and spiritual spheres may be integral to the mediation; and parties must be seen as consisting of body, mind and soul ( conferencing for juvenile offenders. Additionally, there is room for African group-style mediation to be used within the spheres of mediation provided for by the Children's Act. This can be done by incorporating elements of African group mediation in mediation sessions mandated by the Children's Act. These elements should also be successfully included in private divorce and family mediations that take place in South Africa, as well as in court-mandated mediation. Learning from African groupstyled mediation and including this in mediation will benefit divorce and family mediation in South Africa. The principles of African group-style mediation can be used to positively change the way that divorce and family mediation is practised in South Africa.