1. INTRODUCTION

This Code seeks to establish a framework for professional and ethical conduct within the practice of mediation in KwaZulu-Natal by properly qualified and trained mediators, in the area of  family disputes and more specifically, matrimonial disputes, both pre and post divorce. It is KAFAM's policy that where prevailing emotional issues, and issues involving the needs and rights of children, which require specific professional input, to recommend that a trained co-mediator with the appropriate qualification and experience, usually a suitable psychologist or social worker, is appointed by the participants to mediate jointly together with another mediator.


2. DEFINITION OF MEDIATION

Mediation is a process in which a neutral, qualified, and suitably accredited person or persons, facilitate/s a voluntary agreement between two or more people (the 'participants'), with the objective of enabling the participants to reach a solution to their dispute which is acceptable to them, appropriate to their circumstances, and not contrary to law or in breach of any third party's legal and constitutional rights, and to assist the participants to clarify and define those unresolved issues which might need to be resolved through the courts.


3. QUALIFICATIONS OF MEDIATORS

Mediators may come from a variety of professional backgrounds, for example lawyers, psychologists, and social workers. KAFAM will accept any qualification which is relevant to the issues which arise in family and matrimonial disputes.


4. TRAINING AND ACCREDITATION OF MEDIATORS

The following requirements should be met in order for a mediating member of the KZN     Association of Family Mediators to act as a mediator:-

1.    Possession of a professional qualification which is appropriate to the issues arising in family and matrimonial disputes.
2.    Membership of the KwaZulu-Natal Association of Family Mediators.
3.    Compliance with the accreditation requirements of the KwaZulu-Natal Association of Family Mediators, or the equivalent body in another Province, from time to time.

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​5. PRINCIPLES OF MEDIATION

1.Self-determination: Mediation is based on the fundamental principle of self-determination of the parties in dispute.
2.Voluntariness: Mediation is voluntary. The parties in dispute are not obliged to undergo mediation or to continue with a mediation process.
3.Court: Mediation is separate from any court process, and may lead to a different outcome from the judgement of a court.
4.Freedom to choose a mediator: The parties in dispute have the right to choose a mediator of their choice, and to change their mediator.
5.Participation: each participant should have adequate opportunity to participate and to state their views.
6.Termination/suspension: The parties may either terminate or suspend a mediation process at any stage, either by agreement, or unilaterally. A mediator may in his or her discretion terminate a mediation at any stage.  
7.Impartiality: A mediator must be, and be perceived to be, impartial, and to be acting impartially, throughout a mediation process.
8.Confidentiality: All communications at a mediation are confidential, except where the mediator is under a legal duty to disclose information, or where the parties in dispute agree to such disclosure.
9.Financial documentation not privileged: Any documentation furnished by the participants during discussion regarding their financial circumstances is not privileged, and may therefore be used subsequently by either participant in litigation or any other process.
10.Advice by mediator: a mediator’s only role is to manage the participant’s negotiation, and is therefore not permitted to give any professional advice, or to make any recommendations to the participants.    
11.Legal representatives and other experts: the disputing parties’ attorneys, or other advisers, are not present at mediation.However the parties may continue to consult with their attorneys and other advisers during the mediation process, outside of mediation sessions, which may be postponed for this purpose.
12.Co-mediation: where indicated, a mediator may recommend that a co-mediator with appropriate skills and experience in human behaviour, or in childrens’ needs, is brought into the mediation process.
13.‘Without prejudice’: with the exception of financial information provided during mediation, disputing parties may not use statements made, or information disclosed by them during mediation, against each other subsequently, nor may they have access to a mediator's notes.

6. DUTIES OF MEDIATORS

1.Accreditation: A mediator must be a member of KAFAM or similar organization,  and may not conduct any mediation unless he has been accredited or is undergoing accreditation under the auspices of KAFAM or such similar body.
2.Fees and charges: Prior to mediation, a mediator must disclose and explain the mediator's fees and charges, and reach agreement with the participants on the time and manner of payment and how the participants are to share such fees and charges, before the mediation may commence.
3.Professional standards: A mediator should adhere to the professional standards of his or her profession in addition to those contained in this Code of Practice.
4.Impartiality: duty to disclose: A mediator must disclose the following factors to the participants immediately upon his becoming aware of them whether prior to or during a mediation: i)any prior social or professional relationship with any of the participants; ii)any other circumstances which might lead to a conflict of interests; iii)the content of any prior discussion with any of the participants; iv)any other factor which might bias him towards one or other party; v)any factor which might render him partial towards a particular outcome of the mediation. A mediator may only proceed or continue with mediation after making such disclosure, if the parties agree to his continuing.
5.Impartiality: previous relationship with participants:  Where a mediator has provided any prior service to the participants, he must discuss such prior relationship with the them, his role in the proposed mediation distinguished from the previous earlier relationship, and the participants given the opportunity to choose freely to proceed with the mediation.
6.Impartiality: prohibition on mediating/withdrawal: A mediator may not mediate in any dispute where: i)he finds himself unable to act impartially towards the participants; ii)any factor casts serious doubt upon the mediator's impartiality, and therefore upon the integrity of the mediation process; iii)where he has previously acted for one of the participants in any capacity for example as their attorney, or counsellor. He must immediately withdraw from a mediation if he finds himself in such circumstances during a mediation.

7.Confidentiality – third parties : Unless otherwise agreed by the participants and mediator, a mediator may not disclose the content of the communications during a mediation process to any third party, except where the mediator might be under a legal duty to do so, or in relation to any documentation relating to the participants' financial circumstances which is disclosed during a mediation. (The latter shall be disclosed on an open basis and may be used in subsequent litigation).
8.Confidentiality – communication between mediator and participants: A mediator must immediately disclose the content of any communication between the mediator and one participant whether prior to or during the mediation, except for a  name or address which a participant wishes to remain confidential. However, a mediator may decline to undertake or continue with the mediation should that participant not consent to the sharing of such information, where the mediator believes that it is in the best interests of the mediation process that such information be disclosed.
9.Consideration by participants of each other and affected family members: A mediator should encourage the participants in a mediation to consider each other's needs, and the needs of family members involved in the issues for mediation.
10.Other roles of mediator in relation to participants: A mediator may not act for one participant against another, during or subsequent to a mediation.
11.Outside expert assistance: If during a mediation process it becomes apparent to a mediator that one or more of the participants requires counselling, or professional advice (for example an attorney or accountant), the mediator should adjourn the mediation, and refer the participant/s concerned to an appropriate professional practitioner or body or organization, for that purpose.
12.Adequate participation by each participant: a mediator must ensure as far as possible that each participant has adequate opportunity to state their views during a mediation.
13.Unequal power relationship between participants: A mediator has a duty to prevent as far as possible, one participant from threatening or overpowering the other participant, to ensure an equitable resolution of the issues in dispute.
14.Undue delay: a mediator should use his best efforts to prevent undue delay of the mediation process to its conclusion, by either participant.
15.Termination or suspension of mediation: A mediator shall terminate or suspend a mediation where: i)they believe the issues are inappropriate for mediation; ii)either or both participants are unwilling or unable to participate fully and effectively; iii)the participants insist on pursuing an agreement which the mediator believes is so unfair as to constitute a miscarriage of justice.
16.Children's rights: where the rights of children are at issue, the mediator has a duty to inform the participants that these rights should be given paramount consideration in any proposed agreement between them, and to inform the participants if any such proposed agreement appears to the mediator to be harmful to any children affected by it. In the event of a dispute between the participants about an issue which impacts on the best interests of the children concerned, a mediator is under a duty recommend postponement of the mediation, for the purpose of an independent assessment by an appropriately qualified expert in relation to the best interests of the children.
17.Apparent risk to family members: If a mediator believes that any family member of the participants might be at risk of serious harm, he must advise the participants to contact the appropriate authority. The mediator must check with that authority that this has been done, and if neither participant is willing to do this, the mediator must do so himself.
18.Legal principles and procedures: A mediator should where necessary explain the broad principles of law applicable to the issues in dispute between the participants, as well as the relevant court procedures.
19.Incapacity of participants: A mediator shall immediately adjourn a mediation process should it become apparent to the mediator that one or more of the participants might have a substance abuse problem, or be unable to participate due to their being under the influence of any drug, or to any physical or mental incapacity.
20.Summary of outcome of mediation:At the conclusion of a mediation, and at the request of the parties, the mediator must furnish a summary of the issues raised, resolved, and remaining in dispute. This summary is not binding on the parties, and should clearly state this.
21.Settlement agreement: The mediator shall encourage the participants to refer any agreement reached during mediation to their respective legal representatives for formalization where appropriate, and shall not be party to the participants binding themselves to an agreement which has not been referred to their legal representatives. Should the participants move towards an agreement or result which in the mediator's view, appears to be so unfair as to constitute a miscarriage of justice, he must inform the participants of this.

22.Relationship with participants' legal representatives: i)Once a mediator has been instructed by the participants to proceed with mediation, he shall thereupon notify the participants' respective legal advisers of his appointment to mediate; ii)a mediator shall not except with specific authority or on the direction of the participants, discuss or correspond concerningthe merits of the dispute, with the participants' legal representatives and only the procedural aspects of the mediation where appropriate; iii)where specifically requested by a participant, a mediator shall forward the summary of the outcome of mediation to that participant's legal representative, together with any documentation given during mediation for the purpose of resolving financial issues between the participants.

23.Professional indemnity insurance: mediators should ensure that they are sufficiently covered by professional indemnity insurance in their capacities as mediators, before undertaking any mediation.
24.Advertising and publicity: i)a mediator shall not hold himself or herself out to the public to be a mediator unless accredited as such either by KAFAM or equivalent association in another province, and subject to the rules governing advertising in their profession; ii)a mediator shall ensure that any communication with the public concerning his education, training and expertise is truthful; iii)a mediator shall refrain from promises and guarantees of results.

7. AGREEMENT TO MEDIATE

In accordance with this Code of Practice, the participants to a mediation will be required to sign a     prior written agreement with the mediator/s, which explains the principles of mediation, and     clarifies the terms and conditions of mediation, and how the responsibility for payment of costs will be borne by the participants. 

8. MEDIATORS' FEES AND CHARGES

A mediator should explain the following important aspects of his fees and charges to the     participants, prior to mediation:

1.    The amount charged per hour or per session
2.    Likely duration of each session
3.    Likely duration of entire mediation and therefore total cost
4.    Any costs charged in addition to fees
5.    Manner and time of payment

A mediator's fees must be reasonable and commensurate with the service performed.
A mediator should establish from the participants how they intend to share the mediator's fees and costs, and record this in the agreement to mediate prior to mediation.