Family Mediation in Cape Town, South Africa

In late September, the Family Mediators’ Association of the Cape (FAMAC) hosted its third bi-annual conference and I was honoured to be a returning international guest speaker.

This year I spoke on “Empowering Parents Through Interest-Based Mediation and Facilitative Parenting Coordination”.  

(Note: all the conference presentations are available on the FAMAC website)

The Conference was opened by my wonderful friend and colleague, Robert Simon from San Diego, whose presentation on cognitive bias in dispute resolution was very well received.

The two days highlighted the similarities and differences between our two jurisdictions. In particular:

  • The South African government is considering introducing mediation legislation, including mandating family mediation. The model used in Ghana may well be the most relevant to the South African experience;
  • Family arbitration is prohibited by South African Law. Notwithstanding, practitioners are finding work-arounds to enable them to offer this useful process to appropriate clients;
  • Like Ontario, parenting coordination is not enabled by legislation in South Africa, and parenting coordinators have the additional burden of the prohibition on family arbitration. However, a recent High Court decision has provided clear direction for the appropriate jurisdiction of parenting coordinators (which is almost identical to Ontario’s definition of “secondary arbitration” set out in the Family Law Act) and has even gone so far as to find that courts have jurisdiction to order parenting coordination absent party consent, based on the court’s over-riding jurisdiction as the “paramount guardian of children”. A very interesting decision.

The two days were outstanding, with a diverse array of knowledgeable speakers and excellent presentations. For an outsider to South Africa, it was a very wonderful, warm and impressive experience. Many thanks to the conference co-chairs, Astrid Martalas and Craig Schneider.

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Teaching hundreds of adults every year, Hilary and her team at Riverdale have designed a wide range of courses. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.

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