On 9 March 2012, ProBono.Org in Durban held a workshop on the legal representation of children in terms of the Children’s Act (38 of 2005). The workshop was generously hosted by Garlicke and Bousfield at their Umhlanga Ridge offices where the participants enjoyed lunch and then settled into engaging with a new and developing area of family law.
The expert presenter was Carina Du Toit, an attorney with the Centre for Child Law at the University of Pretoria since 2005. During the presentation, Carina focused on the circumstances under which a child is entitled to legal representation and the scope and function of the legal representative, as opposed to that of a curator ad litem, whose duty is to act in the child’s best interests. Carina highlighted the fundamental difference as being that a legal representative takes instructions from the child whereas a curator ad litem acts in the child’s best interests. A legal representative puts forward to the court the child’s requests, irrespective of whether he or she agrees with the request, to the extent that should a legal representative strongly disagree with the child’s instructions and not wish to put it forward to the court, that legal representative would need to withdraw from the matter, just as he or she would under ordinary circumstances. Carina cautioned attorneys representing children from engaging with a judge on what s/he feels is in the best interests of the child, but rather to emphasise to the court what the instructions are from the child (client).
On 24 February 2012, ProBono.Org in partnership with SANCO, held a workshop at the Methodist Church in Johannesburg to which a number of community members were invited to attend. The workshop was presented by Amanda van Loggerenberg, an attorney practising at Wynand du Plessis Inc. The workshop focused on customary marriages.
On 21 October 2011 Probono.Org held its final peer review session for mediators which focused on child inclusive mediation. The presentation was done by Sheetal Vallabh, a clinical psychologist who previously practised as an attorney.
The majority of the attendees indicated that they seldom include children in the mediation process and have not realised the important role that children can play towards achieving a successful mediation.
On 6 July 2011 ProBono.Org held a family law workshop at Bowman Gilfillan Attorneys which focused on the role of mediation as a means of resolving disputes, particularly within the domain of family law.
We were privileged to have John Brand from Bowman Gilfillan Attorneys and Advocate Martin Brassey SC present at the workshop. John’s presentation focused on the evolution of mediation in other countries and the advantages of mediation over litigation in that litigation is backward looking and limited to the papers before the court whereas mediation allows parties to control the process and the outcomes.
Advocate Martin Brassey SC discussed the Brownlee Judgment and the role that mediation can play in resolving disputes in an amicable manner without parties incurring the expenses associated with litigation. In terms of the judgment, which has recently been confirmed by the Constitutional Court, attorneys are obliged not only to advise their clients on the benefits of mediation but to also encourage participation in mediation. Failure to do so could result in a possible cost order against the attorneys.
See the presentation given by John Brand and Martin Brassey.
Mediation & the Civil Justice System
On 12 April 2011 ProBono.Org held a workshop which focused on whether mediation can occur where there is a domestic violence order in place. Advocate Amanda Scott, a member of the Johannesburg Bar and Heidi Kidd, an attorney who specialises in family law, presented the workshop. The workshop concentrated on the opinion Amanda provided on the subject and explored situations where mediation could be used as a successful tool to end disputes between parties.
There was consensus amongst the attendees that where a protection order is obtained pursuant to sever physical and / emotional abuse, mediation should not be attempted as there will be an imbalance of power between the parties. More often than not it would be quite difficult for the mediator to try and restore the balance. In other less sever situations a mediator can opt to use the shuttle mediation approach whereby the parties are placed in different rooms and mediation occurs between the two rooms.
Read the paper:
Mediation in the context of domestic violence orders