In this article preventive dispute resolution in guardianship, care and contact matters in South Africa is discussed. The question explored is whether sufficient preventive dispute resolution occurs in such matters in South Africa. Firstly, the concept of preventive dispute resolution is defined. Originally preventive law described the matter when lawyers used to counsel their clients about how to achieve their goals in ways that would avoid future legal problems. Preventive law was used mainly in the fields of estate and business planning. The preventive lawyer uses periodical legal check-ups to identify possible future legal problems and helps clients to avoid future legal problems by using drafting approaches, problem-solving techniques, and alternative dispute resolution mechanisms. The lawyer and client can take various steps to prevent disputes, which include identifying issues where there might be a psychological concern; determining the legal procedure that is most likely to have either positive therapeutic effects or will minimise the negative effects; analysing future legal procedures from the viewpoint of preventive law and choosing the legal procedures that will maximise the opportunity for positive effects and minimise the risk of negative effects and establishing a system for dealing with unexpected events so that non-therapeutic legal procedures can be avoided. In the 1990’s a mutually beneficial link was made between preventive dispute resolution and therapeutic jurisprudence. Therapeutic jurisprudence offers preventive law a focus that embraces an ethic of care, while preventive law reciprocates by offering therapeutic jurisprudence a set of practical office procedures. These two concepts can, for example, enhance a divorce process by identifying the legal issues that later lead to psychological issues and further disputes. Neutral evaluators also play a role here. The neutral evaluator can encourage settlement; clarify facts; evaluate the strengths and weaknesses of each party’s case; identify the main issues in the matter and even estimate which party may be held liable and what the range of the award would be. The goal of the neutral evaluator is to promote settlement. The advantages of early neutral evaluation are a saving in costs and time; the parties do not feel alienated from the process; and parties can tell their stories. One of the aims of preventive law is to prevent recurrent litigation in the future. There is a potential for repeated conflict and the tools of preventive law should be used to prevent this. Ways to do this include diffusing the client’s anger or resentment and facilitating healing and a new beginning for the client, exploring dispute resolution that will increase the possibility of the parties complying with the resolution that has been reached; building flexibility into agreements in order to deal with change; suggesting that alternative dispute resolution be used to deal with any future disputes; draft agreements that commit the parties to using alternative dispute resolution. A variety of preventive approaches exist, for example consulting with the relevant agencies in order to avoid problems; clarifying requirements and ensuring compliance on the part of clients. Conflict coaching is also a valuable form of preventive dispute resolution. The preventive lawyer works within the limits imposed by the client’s resources and needs. When litigation does occur some preventive law measures may still be applied, but more often mediation will be the dominant alternative dispute resolution mechanism that is applied.
Secondly, traditional dispute resolution methods in African communities are explored. Traditional justice mechanisms are common in African societies and rights are often exercised in a group context. Customary marriages provide for checks and balances that discourage divorce, and negotiations between families are mandatory when family breakdown occurs. Disputes are resolved through the inkundla/lekgotla, a “group mediation and reconciliation forum”, and the whole community is involved at various levels. Mediators play an important role in African societies. The mediators can fulfil various roles, such as making suggestions or recommendations; giving assessments; fulfilling a facilitating role; clarifying information; promoting clear communication; and repeating points of an agreement or emphasising norms. Opportunities for preventive dispute resolution clearly exist in African societies as the elders have opportunity to discuss matters and to persuade individuals to reach an agreement before a dispute escalates.
Thirdly, opportunities for preventive dispute resolution in guardianship, care and contact matters in Ghana, Kenya and South Africa are explored. These countries have progressive legislation that considers the rights of children and emphasises the best interests of children. The legislation of these countries may provide us with an idea of how to keep the rights of children at the forefront in guardianship, care and contact matters and to incorporate them in preventive dispute resolution as well. The Ghanaian Children’s Act, the Kenyan Children Act and the South African Children’s Act have preventive law components in that they emphasise various forms of alternative dispute resolution and the best interests of the child. The Ghanaian Children’s Act provides for a Family Tribunal that holds an informal inquiry that is not adversarial. In Ghana a Child Panel may mediate in all matters concerned with the rights of the child and parents’ duties and the powers of the Child Panel are solely those of mediation and reconciliation. Although the Kenyan Children Act itself does not refer to mediation, the Civil Procedure Rules of 2010 provide for arbitration under order of a court and other alternative dispute resolution. The South African Children’s Act of 2005 stresses that in matters concerning children, an “approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided”. The South African Children’s Act provides for mandatory mediation in certain instances and also provides for pre-hearing conferences, family group conferences and other lay forums. Preventive dispute resolution deals with the prevention of disputes and often occurs before there is any litigation or record of litigation. It is submitted that preventive dispute resolution is encouraged by the South African Children’s Act, just as alternative dispute resolution is also provided for in the legislation of other countries that deal with disputes of care, guardianship and contact with children. Preventive dispute resolution pre-empts disputes.
Lastly, suggestions are made regarding the implementation of preventive dispute resolution in such matters in South Africa. The conclusion reached is that preventive law must fit in with the legal system as a whole, as well as with the unique circumstances of the relevant family. It is clear that there are many opportunities to apply preventive law in guardianship, care and contact matters in South Africa. Preventive law can be used by emphasising settlement to parties, as well as providing the parties with information that stipulates that the Children’s Act states that alternative dispute resolution is the preferred option in matters concerning children. Various alternatives can be used instead of litigation. These include parenting education programmes, mediation, early neutral evaluation and parenting coordination. Differentiated case management and conflict coaching can also be helpful when assisting parties to avoid litigation. Other preventive methods that could be used include proper and complete intervening, liaising with the appropriate authorities (such as child welfare services, social workers or the family advocate’s offices) before a serious problem arises as a result of litigation. Family group conferences can also be held as a method of intervention to get all facts from the parties and to steer them towards a non-litigated solution where possible. Early neutral intervention could possibly be included as well as family group conferences. Collaborative law, where the aim is to assist parties to reach an agreement, plays an important role here. An emphasis can be put on preventing disputes by making use of antenuptial agreements, domestic partnership agreements, wills and parenting plans. Community-based family relationship centres can also be used. Although therapeutic jurisprudence is in the spotlight in the USA, it is recommended that preventive dispute resolution methods should not be viewed solely from an American perspective. Rather, attention should be paid to the dispute resolution methods of traditional African customary law as well as the dispute resolution methods found in South African private law. These various methods of dispute resolution can also be combined. The challenge, however, is to apply these dispute resolution methods in practice.
It is difficult to determine how successful preventive dispute resolution is. This is because successful preventive dispute resolution is not reported in court decisions. The reason for this is that successful preventive dispute resolution appears in unreported settlement agreements that are made an order of court, or the dispute is successfully resolved prior to any court proceedings.
Keywords: alternative dispute resolution; dispute resolution methods; preventive dispute resolution; preventive law; settlement; therapeutic jurisprudence
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