African-style mediation and Western-style divorce and family mediation: reflections for the South African context
Abstract
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 Africanstyled
group mediation.
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