A humanistic approach to divorce and family mediation in the South African context

Dr Amanda E. Boniface (BLC, LLB, LLM, LLD (UP)), Certificate in Advanced Divorce and Family Mediation, Post-doctoral Research Fellow at the Institute for Dispute Resolution in Africa, UNISA, Advocate of the High Court of South Africa, Divorce and Family Mediator.

Abstract

This article explores the principles and processes of Western-style divorce and family mediation, as well as the principles and processes of African humanistic mediation, as they are applied in South Africa. Critique, as well as the advantages of both approaches, is dealt with. Similarities between the principles are explored. This strategy is informed by holistic knowledge. The knowledge relied upon sometimes demonstrates conflicting worldviews and is in a specific cultural context. The challenge is to find a holistic way of mediation in South Africa. This article proposes ways in which humanistic mediation can be used to positively influence and change the current family mediation practice in South Africa.

Introduction

In South Africa the type or style of divorce and family mediation used by trained mediators that are affiliated with one of the recognised bodies of mediators¹ is generally based on the system of mediation practised in Western countries. The question is whether this Western model of mediation adequately accommodates the needs of diverse cultures within South Africa and reflects the principles of African humanism.

This article will look at the principles and processes of both Western-style divorce and family mediation and African humanistic mediation, and deal with the advantages and limitations of each approach. Then similarities between the two styles of mediation will be explored. The ways in which the principles of African humanistic mediation and Western-style mediation² can be incorporated³ in order to form a holistic way of mediating in divorce and family matters in South Africa will be proposed.

Western-style divorce and family mediation

‘Divorce mediation’ and ‘family mediation’ are forms of alternative dispute resolution. Mediation is a co-operative negotiation process where a third party, the mediator, assists parties to negotiate over issues in dispute, in order to try to reach an agreement or settlement (Roberts 1998:4–6; Stintzing 1994:37; Van Zyl 1997:142). The parties need to be oriented through conciliation⁴ to communicate with each other objectively and rationally (Scott-MacNab and Mowatt 1987:50; Levy and Mowatt 1991:65).

The mediator initiates, nourishes and sustains the process of discussion, but does not make decisions for the parties and is an ‘impartial umpire’ (Singer 1990:20). The parties determine the outcome of the mediation (Van Zyl 1997:142; Goldberg et al. 2003:111). Mediation is a private process and relatively informal (De Jong 2008:631). The agreement reached by the parties during mediation may be drawn up by the mediator or by lawyers (Parkinson 1997:2).

In family mediation the mediator helps parties to reach a mutually satisfying agreement that recognises the needs and rights of all family members. The mediator uses various methods such as empathic listening, power balancing and rephrasing in order to achieve this (De Jong 2009:112). Mediation is not family therapy, but the mediator may suggest that parties go to therapy. The mediation may at any rate result in there being less bitterness and conflict between the parties,⁵ but the objectives of mediation may differ, depending on the style of mediation that is used (Roberts 1998:15–16).

Mediation is a process that is ancient, but it has been re-engineered to suit the needs of highly industrialised, urbanised societies. Western mediation has discarded the social context that once supported it⁶ and has been remodeled to fit within a confrontational approach model of dispute resolution (Faris 2011:2). Western-style mediation came to South Africa with its own ideologies, historical narrative, code of ethics, standards of training and method of dispute process and outcome (Faris 2011:2). In South Africa divorce mediation is mainly based on the British and American models (Van Zyl 1997:143). Only since the 1980s and 1990s has Western-style alternative dispute resolution become more common in South Africa. The South African Association of Mediators (SAAM), which was founded in 1988, was the first organisation in South Africa that dealt exclusively with divorce and family mediation. Other associations include the Family Mediators’ Association of the Cape (FAMAC), the KwaZulu-Natal Association of Family Mediators (KAFAM) and the Arbitration Foundation of Southern Africa. Private family mediators in South Africa are mainly attorneys, psychologists or social workers who have at least forty hours training in family mediation. These mediators work either individually or in a team and charge professional fees for the services they offer (De Jong 2010:528). There are also community mediation services, such as Family Life and FAMSA⁷ that offer mediation services either for free or at minimal cost. The National Accreditation Board for Family Mediators (NABFAM)⁸ has been established as a national regulatory body for mediators and sets out standards with which all accredited mediators, as well as accredited mediation training courses, must comply.⁹ In future, all mediators will have to be accredited by the national regulatory body (De Jong 2010:528–529).

General principles of Western divorce and family mediation

Within the field of divorce and family mediation there are general principles with which mediation should comply. Amongst these principles are:

• Mediation occurs within the boundaries or ‘shadow’ of the law¹⁰ (Levy and Mowatt 1991:64; Clark 1993:459; Mnookin and Kornhauser 1979:950).
• Mediation is a multi-stage process (Moore 1996:14) and the stages followed depend on the model of mediation being followed (Van Zyl 1997:156; Singer 1990:22) but are generally similar.¹¹
• Mediation is private and confidential, except for the outcome that may be incorporated in a settlement agreement (Roberts 1998:95). In ‘closed mediation’ all other information, other than the settlement agreement, given to the mediator will remain confidential.¹² In ‘open mediation’ the mediator can include in his or her report any information relevant to the issues being mediated, but if there is a resolution of issues, the report will usually only contain a description of the agreement reached (Landau, Bartoletti and Mesbur 1997:20–21).
• Mediation is a multi-disciplinary field, and mediators may refer clients to other professionals.
• The mediator is impartial (Parkinson 1997:13–14). Mediation has its own values, such as encouraging agreement, promoting informed decision making and helping parents to take their children’s needs into account.
• The parties control the outcome of the mediation (Scott-MacNab and Mowatt 1986:199).

There are three mediator roles (Moore 1996). Firstly, there are social network mediators, who have existing relationships with the parties and are usually respected members of the community. They are not neutral, but they are seen as being fair, they are concerned with maintaining long-term social relations and may even participate in the implementation of the agreements. Secondly, there are authoritative mediators, who are in a position of authority over the disputing parties, for example managers; they may be neutral or they may have a vested interest in the outcome in the matter being settled. Thirdly, there are individual mediators who do not have a prior relationship with the parties and help the parties to settle their disputes on grounds that are mutually acceptable for the disputing parties.

Various styles or models of mediation are found due to emphasis on process in mediation instead of structure (Faris 2006:444). However, the majority of these styles focus on the relationship between the parties and do not look at the community. In evaluative (or directive) mediation,¹³ the mediator plays an active role in the decision-making process and assists the parties in reaching resolution by pointing out the weaknesses of their cases, predicting what a judge would be likely to do, and makes formal or informal recommendations to the parties as to the outcome of the issues. The mediator may provide additional information, make an assessment of the issues in dispute, look at probable options at the disposal of the parties and give advice regarding settlement (Faris 2006:442). In this form of mediation, party autonomy is compromised in order to reach settlement (Faris 2006:442). The mediator usually has substantive expertise or legal expertise in the area of the dispute, many are attorneys. In facilitative (non-directive) mediation, the mediator only acts as a facilitator for the communication or negotiation that takes place between the parties. The mediator does not make recommendations to the parties about how to resolve the issues or offer an opinion on how it should be done (Faris 2006:442). Multi-generational family mediation may occur here; parties are encouraged to reach a settlement within a range of likely court outcomes and the mediator is usually an expert in child and/or family law (Cooper and Brandon 2007:292–293). The mediator who facilitates assumes that the parties are intelligent, understand their situation and can create better solutions than any the mediator might create.¹⁴ Due to the mediator focusing on the process, party autonomy is guaranteed. The parties control the outcome of the process, whilst the mediator controls the process (Faris 2006:442). In transformative (therapeutic) mediation the mediation focuses on trying to change the dispute from a negative dispute into a positive and growth-oriented event. The mediator works with these opportunities to support the parties’ mediation process of making deliberate decisions (Folger and Bush 1996:264). The mediators meet with both the parties together so that they can give each other ‘recognition’. There is an emphasis on exploring the relationship as a means of determining the future conduct between the parties, rather than on the dispute, and the dispute is defined in terms of emotional and behavioural factors (Faris 2006:446). The parties structure the process and the outcome of the mediation and the mediator follows their lead (Zumeta 2000; Folger and Bush 1994). The mediation offers the parties the opportunity to strengthen their capacity for self-determination as well as responsiveness to others and fosters empowerment and recognition (Folger and Bush 2006:264–265, 277). In narrative mediation, the dispute is seen as providing one view of the relationship between the parties and the narrative mediator helps the parties to develop an alternative story of their relationship. The behaviour is not seen as a pattern or dynamic but rather as a story that has become problem-saturated (Paquin and Harvey 2001–2002:167). Narrative mediation may result in psychological and moral growth of the parties (Paquin and Harvey 2001–2002:167).

Advantages of Western-style mediation

Amongst the advantages of Western-style mediation are that it:

• can be adapted to accommodate the needs of the parties and the context of the dispute;
• allows for direct communication between the mediator and the parties, thus preventing a ‘broken telephone’ scenario (Singer 1990:39);
• may help, through the mere presence of the mediator, to get the parties to talk to each other (Roberts 1998:64);
• can give parties the confidence to talk and work out disagreements on their own (Stintzing 1994:48; Van Zyl 1997:185);
• allows for ‘venting talk’ (Shailor 1994:11);
• can include children in the mediation process, thus fulfilling their rights to be heard and to participate in matters affecting them (Art 12(1) and 12(2) CRC; Davel 2006:118; Art 4(1) and Art 4(2) of the ACRWC);
• may be beneficial for children and minimise the emotional effect of divorce on children (Davel 2006:118);
• gives parties greater control over the decisions made in their case;
• assists the parties to recover dignity and self-respect (Roberts 1998:23);
• is an informal process that is easy to understand;
• is a private process (De Jong 2005:95–97);
• is time-saving (Van Zyl 1997:191; Stintzing 1994:48);
• costs less than contested litigation (King et al. 2009:133; Van Zyl 1997:190);
• avoids unnecessary conflict or helps reduce conflict (Crouch 1982:219);
• accommodates different cultural and religious beliefs and canincorporate specific customs (Goldberg 1998:755); and
• produces agreements that are longer-lasting (King et al. 2010:132).

Several of these may be seen as advantages for the justice system as a whole (De Jong 2008:631–633).

Limitations and concerns in Western-style mediation

Mediation may be unsuitable where:

• there is a substantial power imbalance that the mediator is not able to address;
• there is domestic violence,¹⁵ as women may be powerless in the mediation environment (De Jong 2008:455; Field 2006:54);
• women do not have the same bargaining power as their husbands and they may agree to agreements that are unfavourable to them (De Jong 2008:454–455; Heaton 2005:567; Van Zyl 1997:20–22);
• women and family systems theory obscures unequal social power and sex role socialisation (King et al. 2010:133; Grillo 1991:1545);
• the fact that women may be generally prejudiced socially, psychologically and economically by the mediation process are not taken into account by the mediators (Clark 1993:454);
• mediation may not always be better for children (Van Zyl 1997:199);
• there is a risk of child abuse or alcohol, drug or mental health problems;¹⁶
• one or more of the parties are unwilling to participate or totally unassertive during mediation;
• there is an assumption that the parties in mediation are able to articulate issues that are important to them but not everybody has this ability (Stintzing 1994:49);
• parties who attend mediation may be unable to go to court afterwards as the combined costs may be too high (Stintzing 1994:49);
• there are large estates and formal disclosure of documents is essential; and where
• there are very complicated legal issues; and if there are very high conflict cases, such as allegations of parental unfitness (De Jong 2010:522).

There is concern that mediators:

• may be interested in compromise and that agreements could result that are ‘not equal’, reinforce gender inequalities and should rather be heard by society (King et al. 2010:133; Grillo 1991:1545);
• can never be truly independent as our society is patriarchal (De Jong 2008:455);
• may see themselves as advocates for children and disregard women’s rights (Van Zyl 1997:183);
• may be biased towards joint care of children, which may result in ex-husbands controlling their wives and children and hampering their efforts to make a new start, and in women ‘bargaining away’ property and maintenance in order to obtain sole care (Van Zyl 1997:199);
• may never truly be ‘neutral’, as all are influenced to some extent by their cultural background (Van Zyl 1997:182);
• may, if they are from a different cultural background than the parties in the mediation, be unable to understand the cultural context within which the dispute occurs; and
• may be incompetent and not properly trained.

African humanism

African humanism, unlike the Western humanistic concept, does not see jurisprudence as linear and hierarchical, descendent from on high and imposed on the subjects below. African humanism sees law and rights as coming from below, as being ascendant or horizontal, and therefore emphasising the needs of those on the ground and the ‘primacy of the whole’ (Woods 2003:53–54, 56). In African humanism, human beings matter and there is no dichotomy between the spiritual world and the material world, there is a continuity that is reinforced by interrelationships and interconnectedness (Mphahlele in Woods 2003:55).

Afrikology¹⁷ can be used as a new means of humanising people in society. The origins of the African dictum ‘I am, therefore I exist’ are consistent with the Ubuntu dictum ‘I am because you are’ (Nabudere 2011:30–33). In African humanism, ‘[l]anguage is not only strategic to human understanding; it is at bottom constitutive of human beings themselves’ (Nabudere 2011:39). Parties need to be able to express their feelings so that they can ‘realise a new kind of awareness about our relation to the world’ and to ‘describe their situations’, ‘in which their feelings can have full realisation’. The importance of language, and of gaining control of the words of language, is stressed in African humanism. Words need to be well-defined and used consistently (Nabudere 2011:86).

Knowledge in African societies is not seen as something abstract and separate from everyday life, it is bound up in humanity’s social behaviour and daily life (Nabudere 2011:88). In these societies a ‘connective justice’¹⁸ held individuals together and connected consequences with deeds. African humanism recognises the relationship between the body, the soul and spirit. It believes that communities need to emphasise sharing and equitable resource distribution, and to revive cultural values that foster a climate in which peace can flourish. Ubuntu ‘tries to capture the essence of what it means to be human’ (Murithi 2006:28), it states that ‘we belong in a bundle of life’ and that ‘a person is a person through other people’.

In African humanism a person is connected to the community; one must fulfil one’s obligations to self, family and community, and interdependence is an essential characteristic of the human being (Woods 2003:56). Rights that one has in society are transformed into duties that one has to other members of society.¹⁹ Spirituality shapes the concept of humanness and the concept of the enjoyment of life and caring for each other is stressed (Masango 2006:930–931). An individual’s humanity is expressed through personal relationships with others in the community, and others in turn reciprocate the individual’s humanity (Nyaumwe and Mkabela 2007:152–153). Ubuntu is associated with seriti, a life-force by which a community of persons are connected to each other, it demands us to care, to be responsible and not to live in such a way that we are diminished as persons (Bohler-Muller 2007:144).

Inter-mediation in African perspective

In African societies, customary law was known to everybody and was handed down from the ancestors, and thus there was no ‘sharp distinction’ between what ordinary people regarded as proper conduct and what was decreed to be law (Dlamini 1991:72). In African societies, many rights are exercised in a group context, with family members co-operating in the exploitation of family resources and in the protection of their interests (Dlamini 1991:72; Woods 2003:55).

Marriage in African customary law concerned the families of the spouses, not the spouses themselves²⁰ (Bennett 2004:188). If lobola had been paid, then the wife was absorbed into her husband’s family and generally had to live with them. If wives experienced problems in their marriage, they had to first approach their husband’s family and thereafter their own male relatives. As a last resort they could approach their traditional leaders (Curan and Bonthuys 2004:9). Customary marriages provided for checks and balances which tend to discourage divorce (Dlamini 1991:76).

The essence of the African judicial system is reconciliation (Choudree 1999:10) and the restoration of harmony is more important than stating the rule of law (Dlamini 1991:83–84). The nature of the proceedings is informal and flexible, enabling litigants and witnesses to feel that ‘justice is done’ (Dlamini 1991:84).

Negotiations between families are mandatory when family breakdown occurs (De Jong 2010:526). In Nigeria, the non-judicial way of dissolving marriage was through consideration by the families, appropriate compensation being made to the woman (Ozoemena and Hasungule 2009). In Botswana, first the family, consisting of a man, wife and children, handles the dispute; and if not settled the household group, made up of one or more families, living in the same collection of huts, then does so. If the conflict is not resolved, the wards²¹, then the headmen can be approached (Department of Justice and Constitutional Development South Africa Undated). In Ubuntu societies in South Africa, especially among the Xhosa, disputes were resolved through the Inkundla/Lekgotla, which was a ‘group mediation and reconciliation forum’ (Murithi 2006:30). The entire community was involved at various levels. The proceedings were led by the Council of Elders and the Chief, and in the case of large disputes by the King. The process of identifying the wrong doing and finding a resolution included family members of the victims and perpetrators, including women and the young. Members of the society could question the victims, perpetrators and witnesses and could make suggestions to the Council of Elders on ways to move forward. The Council of Elders acted as an intermediary, and had an investigative function as well as an advisory role to the chief. The Council of Elders ‘listened to the views of the members of the society and advised on solutions which would promote reconciliation and sustain the unity and cohesion of the community’ (Murithi 2006:30). This peacemaking process dealt with a variety of offences, including family and marriage disputes (Murithi 2006:31).

Customary courts today resemble mediation facilities to some extent. Parties try to resolve conflict between the families of the parties; if unsuccessful they approach the ward head. An ‘appeal’ is also possible to the Court of Chiefs. Currently, these courts are not allowed to hear cases relating to nullity, divorce or separation arising from a civil or customary law marriage.²² Section 8(5)²³ of the Recognition of Customary Marriages Act 120 of 1998 to a certain extent acknowledges the role of mediation in the African culture. There are also legislative provisions and case law that refer to Ubuntu in South African law.²⁴

General principles and methods of African humanistic dispute resolution

The principles found in African humanism include (Murove 2005:208–217):

• an emphasis on communal belonging (see also Murithi 2006:209–210);
• the importance of promoting good in our existence;
• the need to be sympathetic to the suffering of others;
• the considering of the consequences of our actions on the present and the future;
• the importance of communication; and
• the fact that relationships involve the past, present and future (see also Choudree 1999:11).

Generally, principles and methods of dispute resolution include that:

• harmony is important and rituals are performed to maintain it;²⁵
• peace is a communal matter (Zulu 1998:185);
• the family council and traditional courts are used to maintain peace and harmony;
• indabas are held to get consensus in a community;²⁶
• trust and openness are important, facts need to be brought into the open so that the truth can be known and the parties can heal (Murithi 2006:31);
• unwritten rules are enforced to guide people’s behaviour and consensus is reached in the community on common behaviour and practices; and
• reconciliation must involve all the parties concerned (Zulu 1998:187).

Stages of the African humanistic dispute resolution process

There are five stages found in African humanistic dispute resolution as it occurs in public forums. Firstly, fact-finding occurs, where the views of the victims, perpetrators and witnesses are heard. The perpetrators would be encouraged to acknowledge guilt or responsibility, if it was thought that they had done wrong. Secondly, the perpetrators are encouraged to repent or show genuine remorse. Thirdly, the perpetrators are encouraged to ask for forgiveness and the victim to show mercy. Fourthly, the perpetrators are required to pay compensation (a symbolic re-payment) as repatriation for the wrong done (Murithi 2006: 30–31). Lastly, the consolidation of the process takes place, by encouraging parties to commit themselves to reconciliation (Murithi 2009:221). This process was family-inclusive and groups would be encouraged to work towards healing their relationship and contributing to restoring harmony in the community. There is a threefold process of renewal after resolving a dispute. First, one must be right with the ancestors, then right with the community and then right with oneself (Zulu 1998:187–188). This is done by admitting wrongdoing or guilt, explaining what the motivation for the offence was, and then asking for mercy and forgiveness. Thereafter cleansing and renewal by means of a ritual, for example drinking of herbs or making a sacrifice to the ancestors, occurs. After this, reintegration into the community is symbolised by a handshake or sharing a meal together. Offences between individuals require minor rituals, but offences against the clan (ancestors) require elaborate rituals (Zulu 1998:187–188).

During mediation in African societies there is an opportunity for everyone to ‘tell their story’. The term ‘story’ refers to the structure of account giving. ‘Narrative’ refers to the way in which stories cohere together. Narrative contact allows subordinate groups to have a voice and mediation can provide this opportunity (Trenary 1999:40). In terms of African humanism, all viewpoints need to be taken into account (Woods 2003:57). Mediators are ‘storytelling facilitators’ and ‘managers of the storytelling process’ (Rifkin, Millen and Cobb 1991:161). The focus must shift ‘from the transmission of message to the reciprocal interaction of storytelling’ (Rifkin, Millen and Cobb 1991:160–162). Instead of asking ‘why’ a message was delivered, we are concerned with ‘how’ the ‘sending of the message plays a part in the social construction of reality’ (Rifkin, Millen and Cobb 1991:160–162).The narrative is influenced by the way the mediation session is structured and also by interventions²⁷ along the way. The problems of identifying and dealing with disputants’ sides are eliminated if mediators focus on the conjoint process of storytelling (Rifkin, Millen and Cobb 1991:161).

Advantages of African humanism for mediation

There are many advantages that may flow from applying the principles of African humanism in divorce and family mediation. Amongst these the following may be listed:

• The essential unity of humanity is re-emphasised (Murithi 2006:29).
• People are given a sense of shared destiny (Murithi 2006:29).
• Attitudes and values based on the sharing of resources are promoted (Murithi 2006:29).
• Norms and values that are beneficial in mediation are promoted – including justice, respect for persons and property, tolerance, reliability, compassion, sensitivity towards the aged, the physically challenged and less privileged (Masenya 1997:448).
• Cooperation and collaboration in solving problems are emphasised (Murithi 2006:29).
• A value system for giving and receiving forgiveness is provided (Murithi 2006:29).
• A rationale is given for letting go of the desire of revenge (Murithi 2006:29).
• The members in the community may form a ‘uniting force’ that could care for the wellbeing of others (Nyaumwe and Mkabela 2007:155–157).
• When forgiveness is granted it generates goodwill and a renewal of social trust (Murithi 2006:31), and it maintains social harmony and brings prosperity (Zulu 1998:187).
• The mending of relationships and reconciliation of groups is emphasised (Choudree 1999:11, 16).
• The need to harmonise relationships at the macro-level may impact upon the greater whole (Choudree 1999:25).
• The parties may experience emotional benefits due to the healing that occurs in the relationship encounter in the present, as humanistic mediation is an intrinsic healing (Umbreit 1997:201).
• The process is less forbidding and intimidating to participants than Western-style courts.
• When parties get the chance to tell their stories, they are heard and allowed to vent anger or frustration.
• Disagreements can be heard quickly (Palmary 2004).
• The majority of disputes can be resolved through mediation within or between families, so that only serious cases are referred to the traditional courts (Choudree 1999:17).
• Family processes are the preferred method of dispute resolution (Choudree 1999:17).
• Since marriage is between families (Mabuza v Mbatha), it is families who deal with marriage disputes, violations and abuse and may do it in a way that is reconciliatory and not adversarial (Ozoemena and Hasungule 2009).
• It can be used to improve the situation of women (Masenya 1997:448; Oduyoye 1994:181).
• The meaningful involvement of men and women of all ages is emphasised (Malan 1997:17).
• The duty of care may benefit the community and the participants (Onazi 2009).
• The procedure of resolving conflict is regarded as an event in the continuum of social life (Malan 1997:25).
• The effect of improving life relationships may prevent conflict from occurring (Malan 1997:25).

Limitations of African humanism in mediation

Arguments that the use of African humanism has limitations are:

• People may not want to bring events out into the open and could withhold forgiveness, thus resulting in the process being stalled (Murithi 2006:31).
• ‘The traditional values on which ubuntu was based may no longer be relevant to the contemporary African experience’ (Nyaunwe and Mkabela 2007:153; Masango 2006:940).
• The community also has a dark side, the bonds of unity may not extend beyond the boundaries of the community and the individual may ‘disappear into the community’ or the community ‘absolved into the individual’, as seen in patriarchal societies and religious sects (Onazi 2009:10).
• The group may demand oppressive conformity and loyalty (Onazi 2009:10) and exclude through rhetorical or other violence (Bohler-Muller 2005:271).
• As marriage in African societies traditionally unites two families, this makes it difficult – especially for women – to dissolve a customary marriage, and the lobola may have to be paid back (Anderson 2007:151).
• Polygamy may result in women not being regarded as equal partners with men, and thus having unequal power during mediation. They may even be regarded as servants (Ozoemena 2006:40–42).
• Women may not know enough about their rights and about the provisions of our law, for example in relation to property and domestic violence (Curan and Bonthuys 2004:10; Ozoemena 2006:38–39).
• The neutrality or impartiality of the mediator, especially when from the same cultural background or living in the same area as the parties, may be questioned (Mayer 1987:75–76).
• We must be careful not to ‘legislate’ traditional dispute resolution processes, as this could have an adverse effect on indigenous law systems (Ozoemena and Hasungule 2009:6), but changes should rather be introduced from within traditional institutions.

Incorporating an African humanist approach to divorce mediation in South Africa

There are some similarities between the stages of mediation in African humanistic mediation and in Western-style mediation. In both styles, for instance, ‘venting’ of anger is allowed during the first mediation sessions and is recognised as a process whereby parties rid themselves of their anger so that it does not stand in the way of reconciliation. Western mediation also attempts to get parties to see each other as human beings and not just as opponents, to look at the needs of others, and to treat people with dignity, thus incorporating some of the elements of humanistic mediation. There is an opportunity to tell one’s story in both mediation approaches; and there is an opportunity to heal and to empower people.

Narrative mediation and transformative mediation, encountered in both African and Western-style mediation, allow an opportunity for healing, not just settlement (Paquin and Harvey 2001–2002:167). These approaches tie in well with the concept of ‘therapeutic jurisprudence’.²⁸ The strengths of both of these models can be combined in mediation (Paquin and Harvey 2001–2002:186– 188). Storytelling is central to the ‘I-thou’ relationship that is found in Ubuntu²⁹ and ‘[i]t encourages a move away from the paradigmatic “I think therefore I am” towards “I participate therefore I am”‘ (Bohler-Muller 2005:139).

An important difference between the two approaches is that in humanistic mediation ‘openness’ and ‘public disclosure’ are common and can be seen as helping people heal as the truth is ‘made known’ and ‘brought into the open’; whereas in most Western mediation styles it is common for mediation to be held ‘behind closed doors’ – although in activist mediation the community is involved.

An indigenised, hybrid mediation is being practised in some South African communities already (Nina undated). This mediation took elements from official mediation and incorporated aspects of African tradition, and is characterised by development considerations and collective participation. For example, in the community of Zwelethemba, mediation does not resemble a two-party, one-mediator, Western approach, but is a holistic process of handling disputes and solving them. It involves containing the anger of the parties and identifies the structural and other social aspects that influence or encourage the conflict. Interpersonal conflict is solved by mobilising all available resources towards achieving peace and regaining stability in the community. Although Nina’s study did not focus on divorce mediation but on community mediation, the encouragement of a community that solves problems in a holistic way would be welcomed within the sphere of divorce mediation in South Africa.

‘An interdisciplinary approach to law that builds on the basic insight that law is a social force, having consequences for the mental health and functioning of all those it touches’ (Paquin and Harvey 2001–2002:169).

We are not bound by a single, traditional concept of Ubuntu, as found in African humanism, but new meanings are shaped by our courts and writers that concentrate on values critical to South Africa’s changing social order (Bennett 2011:47/351).

South Africa needs an ‘adapted’ method of mediation.³⁰ The system of mediation would have to comply with current legislation governing human rights. Concerns regarding women’s rights will need to be addressed (Curan and Bonthuys 2004:23). Proper and comprehensive mediation services should be made available to everyone and must be representative of all ethnic and cultural groups, religions, age groups and socio-economic levels (De Jong 2008:640). Community mediators should also undergo training.³¹

In some respects, this model of humanistic mediation parallels a humanistic style of psychotherapy or teaching – in that the importance of empathetic understanding, unconditional positive regard and genuineness is emphasised (Umbreit 1997:204). However, the model that is proposed is not to be confused with therapy and is still mediation. This model of mediation contains certain core principles or beliefs such as in the connectedness of all things and all humanity and in the healing power of the mediation process and of dialogue (Umbreit 1997:205).

Mediators need to demonstrate a caring and nonjudgmental acceptance of the person’s humanity; help people listen to their innate wisdom, their preference for peace and create a safe place for dialogue; as well as share the journey to healing and acknowledging brokenness.

‘Social network mediators’ may be needed more in South Africa. In African mediation, mediators are traditionally from the same community as the disputants. There should be more training of community mediators so that mediations can occur within the community. More co-mediation should be practised, that simultaneously comply with the parameters and requirements of our law with regard to divorce and family disputes. Co-mediation, accommodating two mediators of different cultural backgrounds or schools of training and the inclusion of mediators from the same community as the disputants should be encouraged. These mediators can either be community mediators and do the mediation in the community, or may be mediators within the community who are not trained in divorce mediation but can take part in co-mediation with a qualified divorce mediator. All aspects of African humanistic mediation may not always be included in the mediation, for example the notion of asking for forgiveness and paying a fine or making an offering may not fit in with all cultural and religious beliefs. However, when these elements do fit in with the person’s belief and culture then they could be included in the mediation process.

Should we have the same view of Ubuntu as that in the Child Justice Act (2008), that is ‘one without an overtly (or expressly) public face’ (Sloth-Nielsen and Gallinetti 2011:73/351)? Do we within divorce and family mediation need to reconcile this aspect of Ubuntu with the ‘behind closed doors’ policy that is prevalent in Western-style divorce and family mediation? It would not be far-fetched to allow parties in mediation to have mediation sessions that remain private. Families and communities need to be included and a sense of dignity and worth maintained and fostered during the mediation process. In divorce and family mediation some of the principles can be incorporated, such as the shift from confrontation to conciliation. The extended family should be included in the mediation process and it should allow for participation of children, to comply with international and South African legislation.

We need to be aware of cultural differences during mediation. For example, conflict is generally viewed in Western culture as a difficulty that has to be dealt with but then left behind, whereas another culture may show a tolerance of conflict as something that reasserts social bonds (Brigg 2003:289–290). Western-style mediation may have difficulty recognising and respecting non-Western understanding and functions of conflict and may have difficulty seeing the dispute as a broader issue relating to culture, gender, class, power and other factors (Brigg 2003:293). Western-style mediation expects that parties deal with disputes in a rational rather than emotional way (Brigg 2003:296). Due to the larger role that family and communal relations play for non-Western cultures, individuals may not be in a position to articulate their interests outside of the context of broader relationships (Brigg 2003:296).

We should not force a Westernised system of mediation onto a community, as this will do more harm than good (Nader and Grande 2002:589). We need to take local realities and existing mechanisms into account.³² Traditional humanistic mediation principles could be included in divorce and family mediation in South Africa in private mediation practice, community mediation, public mediation and in the process provided for by the draft rules of court.

Elements that should be included in divorce and family mediation in South Africa are:

• Mediation must be multi-generational where possible.
• Storytelling must take place.
• Parties to the mediation must be allowed to express themselves.
• Mediation must allow for venting of anger and release of emotions.
• Emotional and spiritual spheres may be integral to the mediation (Brigg 2003:302) and parties must be seen as consisting of body, mind and soul (spirit).
• The mediation and divorce process or family dispute must be viewed holistically in its political and social contexts and as part of a broader facilitated negotiation process.
• Mediators may become more personally involved with the parties than is usual in Western-style mediation, for instance through visits to individuals or family homes (Brigg 2003:302).
• Instead of undue analysing and categorising during mediation, the focus should rather be on synthesising and integrating (Malan 1997:18).
• Agreements reached during mediation should include ‘more than merely solving the problem or rectifying the injustice’ (Malan 1997:24).
• The objective should be genuine conciliation and, where necessary, restitution and rehabilitation (Malan 1997:24).
• The mood should be one of co-operation and honouring of reciprocal obligations (Malan 1997:24).
• Parties should be supported and encouraged as they go through the process of peacemaking (Murithi 2006:32).

Conclusion

We need to develop an intra-cultural model of mediation in South Africa, which includes an African humanistic approach to mediation in the mediator’s toolbox and in this way accommodate a ‘jurisprudence of care’ (Law Society of South Africa 2011).³³ Ubuntu should form the foundation for developing a system of divorce and family mediation that fulfils the needs of all South Africans. We need to encourage and provide support for community mediation in communities and co-mediation at court and in private practice.

Although elements of or similarities to African humanism can be found in Western-style mediation, such as narrative mediation and inter-generational family mediation, many key elements of African humanism are absent from the current practice of Western-style mediation. The Western system does not accommodate all aspects of the spiritual and does not currently regard divorce as another event in the social life of a person but rather as an event that needs to be moved past. The focus in the Western-style mediation is on the future, and the past is only briefly dealt with. The social, cultural and family influences and contexts need to be dealt with in detail during mediation.³⁴

Amongst the advantages of African humanism in mediation is that of emotional healing. It is essential that this aspect is no longer seen as a side-line benefit of mediation, with the main goal being one of settlement, but that divorce mediators strive to see their clients as multi-dimensional human beings and are trained to deal with all these aspects of personhood. Mediators must be willing to become involved with their clients, at least to a degree, in order to assist their clients in implementing the decisions made during mediation. In order to adapt a humanistic, culturally sensitive approach to mediation in South Africa, training in humanistic mediation principles must be included in the accredited training courses offered to mediators in South Africa and must be accommodated in court-mandated mediation once such mediation is in force in South Africa.

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Notes

1. E.g. SAAM, the South African Association of Mediators, and FAMAC, the Family Mediators’ Association of the Cape.
2. Predominantly American- or European-style mediation.
3. Incorporation means to take in or contain (something) as part of a whole, include; (also) to combine (ingredients) into one substance (Oxford dictionary).
4. Conciliation is essentially an applied psychological tactic aimed at correcting perceptions, reducing unreasonable fears, and improving communication to an extent that permits reasonable discussion to take place and, in fact, makes rational bargaining possible (Moore 1996:161).
5. Mediators give the parties a chance to vent their emotions, but then manage any conflict that results in order to proceed with reaching a settlement. In comparison, therapists explore the conflict between the parties in order for the parties to understand themselves better (Singer 1990:40).
6. These remarks were made in the context of the legal field. In the field of mediation, mediation by community organisations is found, and here the social context may be taken less seriously than in typical African humanistic mediation, but it is not discarded altogether. See further ‘social network mediators’, discussed below. There are also instances where confrontation between a mediator and an obviously guilty party may be discerned in African mediation.
7. The Family and Marriage Association of South Africa.
8. Launched 23 March 2010.
9. For a copy of these standards, see National Accreditation Board for Family Mediators (NABFAM) 2012.
10. The Children’s Act 38 of 2005 provides for mediation, e.g. in certain disputes concerning parental responsibilities and rights over children, and the Mediation in Certain Divorce Matters Act 24 of 1987 provides for evaluative mediation to be provided by the office of the Family Advocate. The South African courts have increasingly ordered that mediation must take place in care (custody), contact (access) and guardianship disputes. See for example Van den Berg v Le Roux 2003 3 All SA 599 NC; G v G 2003 5 SA 396 ZH; Townsend-Turner v Morrow 2004 1 All SA 235 C; MB v NB 2010 3 SA 220 GSJ and S v J (695/10) [2010] ZASCA 139. See further Boniface 2008:151.
11. The stages of mediation are discussed below.
12. Other than the information that a mediator must by law disclose, such as the reporting of child abuse.
13. Often found in court-mandated or court-referred mediation (Zumeta 2000).
14. Faris (2006:446) reminds us that ‘[a] dogmatic distinction between the facilitative and evaluative models of mediation is artificial’ and that every mediation has both a facilitative and an evaluative element.
15. The Domestic Violence Act 116 of 1998 defines domestic violence as not only physical violence or abuse but emotional; verbal; sexual and psychological abuse as well as intimidation; harassment; stalking; damage to property and so forth.
16. Mediation is not suitable where a parent has a severe personality disorder (Gilmour 2004:38).
17. Afrikology seeks to retrace the evolution of knowledge and wisdom from its source to the current epistemologies, and to try and situate them within their cultural and historical contexts, especially with a view to establishing a new science for generating and accessing knowledge for sustainable use (Nabudere 2011:4).
18. The ancient principle of Ma’at. This principle is found in diverse African languages, for example in the principle of Ubuntu (Nabudere 2011:107–108).
19. E.g. the right to be nursed as a baby transforms into the duty to care for one’s mother in her old age (Woods 2003:57).
20. It was thus technically possible, although socially undesirable, that a bride could be forced to contract a marriage that suited kinship policies or the venal motives of her guardian (Bennett 1991:24). Now the consent of the bride and groom is essential for the validity of the marriage.
21. Local administrative units.
22. The Recognition of Customary Marriages Act 120 of 1998 gives recognition to customary marriages. Customary marriages are now dissolved in the High Courts or Regional Magistrate’s Court but the traditional courts may still decide on issues relating to lobola (see further Dlamini 1991:74). Many people have interchangeable modern and traditional identities and may rely on either customary or civil law (Curan and Bonthuys 2004:6–7). It has been suggested that a hybrid approach to marriage is needed in South Africa (Herbst and Du Plessis 2008).
23. Nothing in this section may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.
24. For example, the term Ubuntu appears in the postamble of the Interim South African Constitution: there is a need for understanding but not for vengeance, a need for repatriation but not retaliation, a need for ubuntu but not for victimisation. See also S v Mokwanyane and another 1996 61 BILP 665 CC and Dikoko v Mokhatla 2006 6 SA 235 CC. The Promotion of National Unity and Reconciliation Act 34 of 1995 uses the concept of Ubuntu to mean a shift from confrontation to conciliation and contains the key values of group solidarity, human dignity and conformity to basic norms. The Child Justice Act 75 of 2008 indicates that we need to take the child’s family and community into account and steer away from revenge and move towards conciliation (Sloth-Nielsen and Gallinetti 2011:70/351, see further Skelton 2005).
25. There is belief that one can only be in harmony if ancestors are in a good relationship with you (Zulu 1998:185).
26. Consensus at indabas was reached based on principles that promote group cohesion and upheld the values of the community. Deterrent fines were given at indabas and it was shameful to receive such a fine.
27. For example, the asking of questions.
28. ‘An interdisciplinary approach to law that builds on the basic insight that law is a social force, having consequences for the mental health and functioning of all those it touches’ (Paquin and Harvey 2001–2002:169).
29. We are not bound by a single, traditional concept of Ubuntu, as found in African humanism, but new meanings are shaped by our courts and writers that concentrate on values critical to South Africa’s changing social order (Bennett 2011:47/351).
30. Dlamini (1991:74) proposes that we need an adapted customary law, stating that law can develop and adapt to altered circumstances, but needs the instrumentality of State actions.
31. But should not be disqualified from mediating if they do not comply with this requirement, as we cannot afford to lose their valuable services (De Jong 2008:640).
32. The Traditional Courts Bill has restorative justice as one of its aims but the court may not hear divorce matters. For criticism, see Hawkridge Traditional Courts Bill a Travesty <http://www.africanscene.co.za/2012/03/traditional-courts-bill-a-travesty/> accessed 10–04–2012 and Swart Traditional Courts Bill out of Step Mail and Guardian online <http://mg.co.za/article/2012–02–17-traditional-courts-bill-out-of-step> [Accessed 10 April 2010].
33. The draft mediation rules are however unclear as to whether there is a possibility of such mediation.
34. Culture-related challenges encountered in South African divorce and family mediation need to be addressed; either African humanistic mediation or Western-style mediation or a holistic approach can be used to do so.