This work was inspired by the need for online mediation in South Africa, particularly in remote areas of our country where there is a lack of qualified mediators. The discussion has as its starting point the recognition that the use of technology is important to improve the lives of people. Subsequently the question is asked whether online mediation will be beneficial for South Africa. Online mediation needs to benefit its users. Originally online mediation was used to resolve disputes in e-commerce transactions. The online mediation referred to in this article is similar to traditional mediation, but makes use of technology in the mediation process. In the online mediation process both parties can fill out forms identifying the problem and the mediator can propose a solution. If the parties are not satisfied with the proposed solution they can make use of a chatroom to have an online mediation session with the mediator. The role that the mediator fulfils in online mediation is similar to the role played by a traditional mediator; the difference is that, unlike in traditional mediation, in online mediation the mediator is not physically in the same room as the mediation participants.
The discussion starts with examining the provisions of South African legislation on family mediation, moving to an explanation of the social context of South Africa. The Children’s Act 38 of 2005 makes particular provision for mediation. In particular, section 6(4) of the act stipulates that in any matter concerning children a conciliatory approach should be used and confrontation should be avoided. In certain instances mediation is compulsory in terms of, for example, section 2(1) of the Children’s Act. Section 33(2) and (5) state that before parties approach a court, the parties entering into a parenting plan must first make use of the services of a family advocate, social worker, psychologist or other suitably qualified person. The Children’s Act also makes provision for lay forum hearings and family group conferences. Of course, the best interests of the child, as stipulated in section 28(2) of the Constitution, must always be taken into consideration in every matter concerning the child – this will also be the case during online mediation, just as it is in traditional face-to-face mediation. The child also has the right to be heard during the mediation process. Thus the provisions of both South African legislation and international documents such as the Convention on the Rights of the Child must be complied with and implemented during the online mediation process.
In South Africa humanistic values such as respect for others must be taken into consideration. Positive values that can be associated with ubuntu/botho, including humanistic morality, inter-dependency and individual responsibility, form the moral basis of individual and community values. Within this context, mediators must be facilitators who have integrated holistic and trans-disciplinary insights and abilities. Mediators need to understand the humanistic values of a community in the process of transformation.
One of the greatest challenges in South Africa is the unequal access to basic services in the different demographic segments of the community. The National Development Plan, 2030 aims to eliminate poverty and to drastically reduce inequality by 2030. It is expected of the Department of Telecommunications and Postal Services to use technology for the improvement of service delivery and to address inequality and poverty. A key area regarding connectivity is the universal, affordable and equitable access to communication infrastructure by all South Africans. The digitisation of information and communication can lead to cultural change, particularly with regard to the way in which people communicate and work on a daily basis. There are indications that South Africa will soon experience an internet revolution, where almost six million internet users will have access to the internet through their cell phones.
The value of online mediation for family disputes in South Africa is discussed, exploring the advantages and disadvantages of online mediation in South Africa. The advantages of online mediation include many of the advantages of traditional mediation. The mere presence of a mediator will help the parties to talk to one another. Additionally, mediation allows for the parties to “vent”. Another advantage of online mediation is that children can be included in the online mediation process, thus fulfilling their right to be heard. But there is a need for regulations to be developed that regulate online mediation in particular. It has been found that online mediation in South Africa is still not suitable for offering the same benefits as traditional face-to-face mediation. However, online mediation can be advantageous as an option where mediation has to be over a long distance.
Some recommendations are made concerning confidentiality, privacy and legal guidelines for the inclusion of children and the inclusion of traditional customs and the involvement of community-based mediators. It is acknowledged that technology can be important in the improvement of the quality of lives of people. However, online mediation is still in its infancy in South Africa and must be developed and refined. Video conferencing can be used in South Africa as well, as the infrastructure for video conferencing exists. However, video conferencing does not always have the same benefits as one-on-one mediation. Legislation is also needed to provide rules for the regulation of confidentiality and privacy during online mediation. The existing forms of mediation in communities, such as the traditional community-based mediators who work in community centres, must be expanded to enable community mediators to mediate in family disputes in accordance with traditional mediators. It is proposed that the inclusion of traditional values can be done in online mediation, just as it can be done in face-to-face mediation. Additionally, community mediators need to have regard to the provisions of relevant legislation. In other words, there must be a marriage between the practices of the modern law, including the use of online mediation, and customary law.
Keywords: alternative dispute resolution; customary law; family mediation; mediation; online mediation