Family disputes are different from other legal disputes. The people involved usually have to keep dealing with each other long after the case is over, especially when there are children. A divorce trial can take years, cost a great deal and leave both parents more hostile than when they started. Mediation offers another route: a structured, confidential process in which a neutral mediator helps the parties reach their own agreement.
South African law increasingly expects families to try it. The Children’s Act requires a conciliatory approach in matters concerning children, the High Court rules require parties to say whether they will mediate, and courts are holding parties to the mediation clauses in their own parenting plans. In a July 2025 judgment, the Johannesburg High Court refused a contempt application brought by a father who had not tried the mediation his parenting plan required. Saying that mediation would make no difference was, in the court’s words, “no answer”.
This article explains when family mediation is used, how it works and how to prepare for it.
What family mediation is, and what it is not
In mediation, an impartial mediator helps the parties identify the issues, explore options and negotiate a settlement. The mediator does not decide the dispute or give either party legal advice. Mediation is:
- voluntary in the sense that no one can be forced to settle, even where a court or agreement requires an attempt at mediation;
- confidential, so that what is said in mediation generally cannot be used later in court; and
- flexible, allowing practical solutions that a court might not order, such as detailed holiday schedules or staggered payments.
Mediation is not a substitute for legal advice. Each party should understand their rights before they agree to anything, and a settlement should be properly drafted before it is signed.
When the law requires or encourages mediation
Matters involving children
The Children’s Act 38 of 2005 sets the tone. Section 6(4) requires that, in any matter concerning a child, an approach conducive to conciliation and problem-solving should be followed and a confrontational approach avoided. The Act then builds mediation into specific processes:
- Parenting plans (section 33). Where co-holders of parental responsibilities and rights struggle to exercise them, they must first try to agree on a parenting plan. Before seeking a court order, they must seek help from the Family Advocate, a social worker or psychologist, or mediation through a social worker or other suitable person.
- Unmarried fathers (section 21). A dispute about whether an unmarried father has acquired parental responsibilities and rights must be referred for mediation to the Family Advocate, a social worker, a social service professional or another suitably qualified person.
- Children’s court matters. The children’s court may refer matters to lay-forum hearings, including mediation by the Family Advocate or a social worker, before deciding them.
The Family Advocate also plays a role under the Mediation in Certain Divorce Matters Act 24 of 1987, which allows the Family Advocate to enquire into and report on arrangements for children in divorce proceedings.
Divorce and other High Court matters
Rule 41A of the Uniform Rules of Court, in force since March 2020, requires a plaintiff to serve a notice with the summons stating whether they agree to refer the dispute to mediation. The defendant must respond by the time they plead. The rule does not force anyone to mediate, and courts have held that failing to serve the notice is an irregularity that can be cured rather than a fatal defect. But a party who unreasonably refuses mediation may face an adverse costs order. The Magistrates’ Courts have their own court-annexed mediation rules.
Mediation clauses in parenting plans and settlement agreements
Many parenting plans and divorce settlements require the parties to mediate future disputes before going to court. As the 2025 Johannesburg judgment shows, courts take these clauses seriously. A parent who rushes to court without trying the agreed process may find that the court declines to help until mediation has been attempted.
Which disputes suit mediation?
Mediation works well for:
- care and contact arrangements, holidays, schooling and relocation;
- child and spousal maintenance;
- division of the joint estate or accrual, including the family home and pension interests;
- disputes between unmarried partners about property; and
- disagreements about implementing an existing order or parenting plan.
It may not be suitable, or may need special arrangements, where there is domestic violence, a serious power imbalance, concealment of assets or an urgent risk to a child. In those cases, protection orders or urgent court relief may be needed first. A good mediator screens for these issues at the start.
How the process works
- Choosing a mediator. The parties agree on a mediator, often a family lawyer, social worker or psychologist with mediation training. Some cases use co-mediators with legal and mental health backgrounds.
- Intake. The mediator usually meets each party separately to understand the issues and check that mediation is safe and appropriate.
- Agreement to mediate. The parties sign an agreement covering confidentiality, fees and ground rules.
- Disclosure. Financial disputes need full disclosure of income, assets, debts and expenses. Without it, any settlement is built on sand.
- Joint and separate sessions. The mediator helps the parties work through each issue. Where children are concerned, their views may be obtained in an age-appropriate way.
- Settlement. Agreed terms are recorded in a memorandum of understanding. Each party’s lawyer should review it before it is turned into a signed settlement agreement or parenting plan.
- Making it enforceable. A settlement can be made an order of court in divorce proceedings, and a parenting plan can be registered with the Family Advocate or made an order of court.
Preparing for mediation: a checklist
- Get legal advice on your rights and likely outcomes before the first session.
- Gather financial documents: payslips, bank statements, tax returns, pension statements, bond statements and a budget.
- Think about your children’s routines and needs in practical terms, not only about what you want.
- Identify your priorities and where you can be flexible.
- Raise any safety concerns with the mediator privately and early.
- Do not sign a final agreement until your lawyer has reviewed it.
How O’Reilly Law can help
We advise clients before and during family mediation, help them prepare financial disclosure and proposals, and review and draft settlement agreements and parenting plans so that they are clear and enforceable. Where mediation is not appropriate or does not succeed, we represent clients in divorce, maintenance and children’s matters in court.
Contact us for advice before you start mediation or sign a settlement.
Related reading: Divorce in South Africa: a practical guide · Care and contact under the Children’s Act
This article is general information and not legal advice. Correct as at October 2026.