African-Style Mediation and Western-Style Divorce and Family Mediation: Reflections for the South African Context

Amanda Boniface

doi:10.17159/1727-3781/2012/v15i5a2529

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 African-styled group mediation.

Highlights

AFRICAN-STYLE MEDIATION AND WESTERN-STYLE DIVORCE AND FAMILY MEDIATION: REFLECTIONS FOR THE SOUTH AFRICAN CONTEXT. Both Western-style mediation and African-style mediation are practised in South Africa
How can Westernstyle divorce and family mediation learn from the African style of group mediation? In this article the question will be explored of whether the Western-style mediation model is adequate to use as it is in South Africa, a country that has high levels of poverty, distinct cultural affinities and religious affiliations, as well as an adherence to traditional and communal values, or whether African-style group mediation can improve the Western model
Some concerns exist regarding family group conferences. Amongst these concerns is that it takes a long time to set up family group conferences; they are lengthy in duration; it is an expensive process, due to the time and skills required for each case;[82] there is a need to harmonise the formal and informal systems; African models of conflict resolution worked well in homogenous societies where there was substantive equality between the parties, restitution and compensation was often linked to payments of goats or cattle and people could make these payments, but colonisation and apartheid have left a legacy of gross inequalities and urbanisation has led to the breakdown of the family and community

Summary

Introduction

Both Western-style mediation and African-style mediation are practised in South Africa. How can Westernstyle divorce and family mediation learn from the African style of group mediation? In this article the question will be explored of whether the Western-style mediation model is adequate to use as it is in South Africa, a country that has high levels of poverty, distinct cultural affinities and religious affiliations, as well as an adherence to traditional and communal values, or whether African-style group mediation can improve the Western model. An explanation of the meaning of the term "divorce and family mediation" and of the general principles of Western-style mediation is provided. Ways of improving Western divorce and family mediation in South Africa by learning from African-style group mediation are suggested

Western-style divorce and family mediation

African group mediation

Mediation in the South African context

Reflections on South African mediation