MEDIATION WORKS AS FOLLOWS
- In terms of Section 18 parents have four parental rights and responsibilities namely Contact, Care, Maintenance and Guardianship and in terms of Section 23 care takers can apply for certain rights such as contact or care
- In terms of Section 33 when parties experience difficulties in the exercise of their parental rights and responsibilities a parenting plan has to be drafted through a process of mediation.
- Section 7 sets out the best interest of the child as a whole and deals specifically with the effect of separation of the Child not only from the other parent but also from other care-givers have to be taken into consideration.
- The voice of the Child in terms of Section 10, Section 31 and Regulation 11.
- The other major point is section 31 which states that the views and wishes of both the child BUT ALSO THE OTHER PARENT has to be given due consideration before making any major decision relating to the child.
1. a Proper consultation process has to be followed to adhere to all relevant legislation before decisions are made and mediation will fulfill the legal requirement in this regard.
1.2 I am an accredited mediator with the South African Association of Mediators (www.saam.org) and an admitted attorney who has a passion for children and I always act in the best interest of the children, in line with the Children’s Act attached hereto.
2. The Children’s Act 38 of 2005 regulates all difficulties, matters, challenges or disputes relating to children. These difficulties, matters, challenges or disputes relating to the children can occur during or even after finalization of all divorce or separation proceedings.
3. In terms of Section 7(n) of the Children’s Act any action, such as mediation which avoids legal action, is in the best interest of the children.
4. Mediation is a process during which all parties, meet with an independent and duly qualified mediator to come to mutually agreed upon solutions, in the best interest of the children. The mediator is a facilitator in this process to assist the parties to resolve the conflict and to draft a Parenting Plan which will formally note all agreements reached and such Plan can be made an order of the relevant Court.
5. The mediator gives information and guidelines as to the Rights of the Children, Parents and Caregivers and can explain and manage the legal processes to be followed in the matter.
6. The mediator will collaborate and work with the parents and a team of professionals towards protecting and developing the best interest of the children such as attorneys, psychologists, social workers, child therapists, Clerks and Magistrates of the relevant Children’s Court and/or any other relevant person.
7. A request to consent to attend a suggested mediation session will be forwarded to all parties, to give them the opportunity to act in the best interest of the children as set out in Sections 7(a) to 7(n).
8. The formal request to mediate will be forwarded to all relevant parties via e-mail. At this stage there will not have been any formal consultation between any of the parties and the myself as mediator and I would have only processed the request to mediate.
9. Should the request to attend mediation be refused, no mediation relationship or agreement to mediate has been established and any of the parties can request me to partake in the matter as their attorney of record.
10. Only at this stage will I request a first meeting and consultation and I will be able to partake in the matter as attorney of record.
11. The Children’s Court will direct the processes to be followed at this stage in line with the Children’s Act, which process could possibly include an application for mediation depending on the facts of the matter.
12. The party who refused the request to mediate is at risk of a cost order being issued against him/her for refusal to mediate as such requested mediation was in line with the best interest of the child principle prescribed in Section 7(n) and the principles of Section6(4) and Section 33.
13. I attach hereto mediation information together with the Formal request to apply for mediation should you elect mediation as a possible solution. You can complete the form and return it to me for processing.
14. The cost of a mediation session is R750.00 per hour and R1000.00 per hour for after hour consultations and costs are normally shared equally between the parties.

 

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