Family law issues such as divorce, maintenance and contact rights with regards to minor children are always accompanied by emotion. There is usually animosity between the parties which results in them wanting to attack each other with the full force of the law and litigation.

Unfortunately, litigation more often than not, only adds fuel to the fire by raising higher emotions which is to the detriment of both parties and even more so, to the detriment of the minor children.

In the event of your marriage being unsuccessful, perhaps you should consider pursuing a “successful” divorce by means of avoiding unnecessary conflict as far as reasonably possible.

There are many ways in which conflict can be managed and avoided. The writer believes that the quicker the lawyer can resolve disputes, the more efficient he will be in taking on new cases and / or resolve more disputes. This will not only increase the opportunity to maximise fees, but it will create more opportunities which will lead to better overall results with satisfied clients.

Often conflict is good (depending on the type), but unresolved conflict is dangerous. There is a definite place in the legal profession to use mediation while working on or resolving a dispute. Mediation is an informal and confidential way to resolve a dispute with the help of a neutral third person, known as a mediator. Mediation is mostly a more affordable, efficient, viable alternative to litigation and has indeed changed the legal landscape.

Whereas the rules of the court and legal principles are utilised as weapons to destroy the opposition through the litigation process, Mediation on the other hand, may help to protect the relationships between the parties.

For example, let’s us look at it as a boxing match. The referee makes a decision and the fighters must accept it.

There will therefore always be a person that feels as though the decision is not right. The writer suggests that it would be better to try and get consensus between the parties in dispute, leaving both parties satisfied (albeit only partially) and only upon failure of such a process and where there is seemingly no way to attain consensus, then approaching the court can be considered.

Legal practitioners must always remember that “a case is a person and a person is a case”, and as such, should strive to approach, handle and resolve family law cases so that the parties’ relationships are protected and maintained, in so far as reasonably possible.

In practice, we often see that by the time a case is over, the relationship between the parties is also destroyed. This can be avoided by using mediation before the court is approached. It’s not only more financially affordable, but can also be more effective, as stated above.

The writer hereof is of the opinion that when a matter is taken to court, there will only be one winner, but when a matter is taken to mediation, both parties may emerge winners.

For more information kindly contact Marinus Barnard of Rauch Gertenbach at 044 601 9900 or


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