What Is Mediation? – A Collaborative Conflict Resolution Approach

Mediation is a recognised form of alternative dispute resolution (ADR) that helps people resolve disagreements through dialogue rather than traditional litigation. It’s widely used in family, commercial, and civil disputes because it is generally faster, less formal, less costly, and more collaborative than going to court.

At its core, mediation involves a neutral third party (the mediator) who facilitates constructive communication and guides the parties toward a mutually acceptable agreement, but does not impose a decision. The aim is to help parties find solutions together, preserving relationships and focusing on fairness rather than “winning.”

Mediation aligns with the Children’s Act 38 of 2005, which emphasises the best interests of the child and encourages parents to resolve disputes outside of court where possible. For married couples, the Divorce Act 70 of 1979 similarly recognises mediation as a constructive means of settling matters related to children. Where the Family Advocate becomes involved, the Mediation in Certain Divorce Matters Act 24 of 1987 provides further structure and oversight to the process.

The Core Principles to Mediation

Mediation is a confidential process. This means that what is discussed during mediation cannot be disclosed to outsiders or used against either party in court, except in very limited circumstances required by law. Confidentiality allows parties to speak openly and honestly, which is essential for meaningful problem-solving and lasting agreements.

Participation in mediation is voluntary. No one is forced to agree to anything, and either party may end the process at any time. This ensures that any agreement reached is based on genuine consent, not pressure, making outcomes more durable and more likely to be respected in the long term.

The mediator is neutral and does not take sides. The mediator does not make decisions, give legal advice, or favour one party over the other. Neutrality creates a balanced and safe environment where both parties can be heard and supported equally, helping them reach fair and workable solutions.

Mediation Party-Directed Decision Making

In mediation, the parties retain control over all decisions. The mediator does not impose outcomes or determine what is “right” or “wrong.” This party-directed approach ensures that agreements are tailored to the family’s unique circumstances, increasing ownership of the outcome and the likelihood that agreements will be practical, sustainable, and respected over time.

How Mediation Works – The Process Explained

Step 1. Initial enquiry and screening

Every mediation starts with a brief intake and screening process.

This helps to:

Understand the nature of the dispute
Assess whether mediation is appropriate and safe
Ensure there are no issues (such as serious power imbalance or domestic violence) that would make mediation unsuitable

Mediation is voluntary and not appropriate in every situation. If mediation is not suitable, this will be discussed openly.

Step 2. Choosing the right package

Based on your circumstances, you will be offered the most appropriate package, such as:

Parenting plan mediation
Divorce mediation
Maintenance mediation

Each package clearly sets out:

What is included
How many sessions are covered
What you can expect it to cost

You will know in advance what to expect — both in process and cost.

Step 3. Mediation sessions

Mediation sessions are structured, respectful, and focused on practical outcomes.

During mediation:

Both parties have an equal opportunity to be heard
The mediator remains neutral and does not take sides
The focus is on reaching voluntary, workable agreements

The pace of mediation is guided by your needs and the complexity of the issues.

What if more time is needed? Some matters take longer than anticipated. If it becomes clear that additional sessions are needed:

This will be discussed openly before proceeding
Any additional costs are agreed in advance
You remain in control of how to proceed
There are no surprise charges.

Step 4: Drafting the agreement

If agreement is reached:
- A written agreement (such as a parenting plan or Memorandum of Settlement) is prepared
- You are encouraged to obtain independent legal advice before finalising any agreement
- Agreements can be made orders of court where appropriate

One round of reasonable revisions is included in each package.

Step 5. Filing and Finalisation

You will be guided on how to submit the agreement to the appropriate court, where it will be made official and legally binding, either as a Decree of Divorce or a registered agreement, depending on your circumstances.

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