POST DIVORCE DISPUTE RESOLUTION: FACILITATION

Mediation is often an inexpensive and timely solution to pre-divorce settlement disputes and remains a sound alternative to adjudication which obverts the often long and expensive divorce litigation process.

However, the consent paper, issued after a divorce has been granted, and especially if minor children are involved, usually includes a facilitation clause. Since the enactment of the new Children's Act in 2007 and 2009 most divorce orders relating to minor children have been drafted to contain a facilitation clause. The typical clause provides for the appointment of a facilitator to resolve post divorce disputes.

WHY IS A FACILITATOR APPOINTED?
A facilitator is appointed post divorce to assist with disputes involving care and contact, maintenance or any other aspect regarding children that post-divorce parents find difficult to resolve on their own. The facilitator acts in terms of the ‘Best interests of the child standard’ as set out in section 7 of the Children’s Act 38 of 2005.

WHAT IS THE ROLE OF THE FACILITATOR?
The role of facilitator is to ensure that the care and contact as detailed in the Parenting Plan has been correctly adopted and adhered to by the parties’ and in the ‘best interests’ of the children involved. The facilitator is a suitably qualified neutral third party who intervenes to help the parties to reach a common decision. In the event that the parties cannot reach any agreement the facilitator has the mandate to make informed decisions in the best interest of the children concerned. Unlike the mediator the facilitator has decision making powers. The facilitator gains information from the children concerned, their parents, appropriate collateral and from other professionals by way of assessments and professional opinions. The facilitator is then guided by the information when compiling the directive.

It is important for lawyers to explain the facilitation agreement in detail to their clients. It remains their responsibility to advise their clients prior to signing any settlement agreement that all unresolved issues should be resolved prior to signing any agreement. The role of the facilitator is often abused when lawyers try to finalize agreements and do not want to deal with the difficult issues. They could simply say that those issues can be resolved post divorce by the appointed facilitator. This might cause escalation of conflict until parties can enter into a facilitation process.

WHAT IS A DIRECTIVE?
Most facilitators will first attempt to resolve any dispute through mediation. If mediation is unsuccessful then the facilitator will have the power to present a directive which will be binding on the parties unless a court having jurisdiction finds that the directive was not in the best interests of the children. In the event that the parties cannot reach any agreement the facilitator will make a decision and issue a directive which is binding on the parties until set aside by a court.

WHO IS APPOINTED AS A FACILITATOR?
The facilitator is required to be a lawyer, social worker or psychologist with at least three years’ experience. The facilitator needs to be a FAMAC accredited mediator and trained facilitator.  The facilitator is not appointed as a lawyer, therapist or counselor for the minor children or either of the parties. The facilitation clause on the consent paper usually provides for the facilitator to be appointed by agreement between the parties. If the parties cannot reach agreement on the identity of the facilitator then provision is made for the facilitator to be appointed by the chair person of the Family Mediators Association of the Cape (FAMAC).

HOW IS A FACILITATOR APPOINTED?
Facilitators may be chosen jointly by the parents or appointed by a registered body such as the Family Mediators' Association of the Cape (FAMAC). The facilitation clause on the consent paper usually provides for the facilitator to be appointed by agreement between the parties and if the parties cannot reach agreement on the identity of the facilitator then provision is made for the facilitator to be appointed by the chair person of the Family Mediators Association of the Cape (FAMAC).

If the facilitator has been appointed by the court, or if both parties have agreed on a facilitator and a contract has been signed, then the facilitator’s services cannot be terminated unless both parties agree to the termination. The facilitator has the right to resign.

WHAT HAPPENS WHEN MEDIATION FAILS?
When the parties in dispute are in deadlock and all attempts at mediation have failed, then a facilitator has the mandate to issue a directive regarding the issue in dispute.

IS THE FACILITATOR’S DECISION FINAL?
The facilitator has the power to issue a directive which is not necessarily based on a mediated outcome. The aggrieved party has the right to take the directive on review to a court where the facilitator’s decision would be evaluated.