An acceptable, applicable and accessible family-law system for South Africa – some suggestions concerning a family court and divorce mediation

Abstract

It is often remarked that the adversarial system of litigation is not well-suited to divorce and other family law disputes as it exacerbates the emotional stress and conflict which usually accompany these kinds of disputes. For this reason the SA Law Reform Commission proposed the institution of a family court which was to consist of a social component where mediation services should be offered, along with a more inquisitorial court component. Because of financial constraints, South Africa is, however, still without a family court. The mediation services which are currently offered by private mediators and community-based organisations and institutions are either under-utilised or under-resourced. It further appears that the strict formalism and Western values and principles of the adversarial family law system is completely foreign to people from African cultural backgrounds with the result that they rather turn to informal dispute resolution procedures at community level with their family disputes. The result of all these problems is that the family law system is presently inapplicable, unacceptable and inaccessible to the majority of the population. Possible solutions hereto are the institution of a family court at lower court level with comprehensive jurisdiction in family matter, and, of greater importance, the institution of mandatory divorce and mediation. As divorce and family mediation offers overwhelming advantages to divorcing spouses, the children affected by divorce and the judicial system in general, it is desirable that anyone who has to experience the pain of family breakdown should benefit from the advantages of mediation. It is consequently proposed that the state should accredit existing and respected private and community-based mediation services through certain new and extended activities of the office of the family advocate to offer the newly introduced mandatory mediation to the public. As private mediation delivers positive results in practice and makes a unique contribution to the resolution of divorce-related problems, and as the majority of the population in any case turn to mediation at community level with their family disputes, mandatory mediation offered by private and community-based mediators will do much to make the family law system more acceptable, applicable and accessible.