The role of a facilitator in family matters regarding children – Should he or she make legally binding decisions or directives?

When parties divorce or they approach a court of law to resolve a dispute regarding a minor child, it was customary for them to appoint a facilitator should they settle the matter. Specific clauses would be inserted into consent papers and settlement agreements, which the parties sign and are made an order of the Court. The clauses would basically state that the parties appoint a facilitator to resolve disputes regarding the minor child and that the facilitator has certain authority and powers. Such disputes could range from one party wanting more contact with the child or disputes regarding aspects of education, for example, which school the child goes to, or aspects regarding extramural activities. At the end of this article, you will find an example of a facilitator clause.

A facilitator should be a suitably qualified person.  He or she does not necessarily have to be a clinical psychologist, social worker, or lawyer.  He or she should be somebody who knows family law, understands the family dynamics, and is skilled in resolving issues between parties. It is therefore very important that the parties appoint a facilitator whom they would feel comfortable with and one who will be compatible with their family situation.

Facilitator’s Power

It would often happen that the parties cannot resolve a dispute amicably through a facilitator.  In such a case, a decision will have to be made.  The facilitator would then have to issue a directive.  In other words, make a firm and binding decision for the parties. A further clause would then usually be inserted into the consent paper stating that the facilitator’s directive would be binding upon the parties as if it was an order of the court.  The directive of the facilitator would then remain binding upon the parties unless a court of competent jurisdiction orders otherwise.  It is this latter aspect that this article deals with.

Introduction of the Facilitation Clause

Based on our history with family law matters, this specific facilitation clause came about in or about 2008, a short while after the Children’s Act came into operation. It was then customary for parties to insert this facilitation clause as a matter of course. In our experience, the family advocate’s office would insist that such a clause be inserted, and furthermore, the courts would have no issue therewith.

Limiting the power of the Facilitator

What has now happened since 2018, in the Western Cape at least, is that certain judges started having an issue with the fact that a facilitator had the authority to make binding decisions on the parties, which had the effect of an order of the Court. In other words, due to the clause stating that the facilitator’s directive would be binding upon the parties as if it were an order of the Court, certain judges began to question such authority.

The court’s reasoning

Basically, the court’s reasoning is how could judicial authority be delegated to a third party? Taking it one step back, when the courts in the past made an order incorporating the settlement agreement, which had a clause therein authorising the facilitator to make binding directives; it basically gave judicial authority to the facilitator. In other words, the facilitator had the authority of a Judge.

What has now become a practice, should a facilitation clause be inserted into a settlement agreement, the office of the Family Advocate of Cape Town, at least, would endorse the Consent Paper or Settlement, Agreement but also direct the Court to determine whether or not the parties understand the role of the facilitator and that they would be responsible for the cost associated therewith.

The Family Advocates’ Reasoning

There could be many reasons why the Family Advocate is directing the parties to advise the court whether or not they understand the role of the facilitator. One such reason could be that they do not want parties to come to them to facilitate disputes and issues that might arise. And of course, the other reason could be due to the court judgments that recently stated that a court can’t delegate its authority to a facilitator.

In our view, asking a party in court whether or not they understand the role of a facilitator and that they will be responsible for the cost thereof is unnecessary. The party would say that they understand the role and that they are responsible for the cost thereof. What value does it have in the case of a dispute arising in the future? Very little.

The future role of the facilitator

Going forward, we still recommend that a facilitation clause be inserted in settlement agreements and consent papers. We further agree that a Court cannot delegate its judicial authority to a third party, unless in exceptional circumstances. However, at the same time, we feel that the facilitator could play a crucial role in resolving disputes between the parties.  Having said that, the parties need to discuss whether or not they would require a facilitator, and in the event they do, they should specifically outline the role of their intended facilitator in the consent paper or settlement agreement.

An example of a neutral facilitation clause

1. FACILITATOR
   • A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
   • These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
   • In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
   • The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
   • The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.