Breaking down the barriers to mediation practice in the South African law system: The experience of unmarried fathers

Abstract

There has been progressive development in the field of mediation globally over the past few decades. The family law system in South Africa has undergone significant changes in recent years with an increased emphasis placed on mediation. The amended Children's Act 38 of (RSA, 2006 has instituted mediation as mandatory in all matters of disputes regarding the care of children. Mandatory mediation is required in the following scenario: in terms of Section 21 (3a) of the Children's Act disputes between a child's unmarried biological parents as to whether the father meets the requirements for acquiring full parental responsibilities and rights in terms of the Children's Act 38 of 2005 (RSA, 2006) must be referred for mediation to a Family Advocate, social worker, social service professional or another suitably qualified person. While it can be said that steady progress has been made in terms of legislation pertaining to mediation in South Africa, it is also evident that mediation practice is largely based on Westernised models and approaches, contrary to the demographics of South African families at large. The qualitative study on which this chapter is based (Nordien-Lagardien, 2019) employed a multiple case study design to explore and understand the experiences of the parties with mediation. Semi-structured interviews were conducted with three participant groups that included: seven unmarried fathers, seven unmarried mothers and eight mediators. Data were analysed using within-case analysis and cross-case synthesis. The findings highlight the need for more culturally responsive approaches to mediation given the diverse context of South African families.