Attorneys: The gatekeepers of disputes

In October 2024, I had the privilege of presenting at the annual conference of the KZN Society of Mediators, an association of dispute resolution practitioners based in Durban. My topic was one that lies at the heart of modern dispute resolution: the role of attorneys as the gatekeepers of disputes.

The concept is simple but powerful. When conflict arises, whether it involves a divorce, a business partnership, a labour dispute, a commercial contract or even a disagreement between neighbours, the first professional most people consult is an attorney.

That first conversation can shape the entire journey of the dispute.An attorney can direct a client towards mediation and constructive engagement—or steer them straight into the adversarial world of litigation.

The Power of Influence

Attorneys occupy a unique position in the justice system. They are often the first voice of reason in a client’s moment of crisis. And crisis is exactly what many clients are experiencing.

A person going through a divorce, for example, is often dealing with fear, anger, betrayal and uncertainty. Yet at the same time they are required to make life-changing decisions affecting their finances, their children and their future.

The same applies to business disputes, labour conflicts and contractual disagreements. Behind every legal dispute lies a human story, often fuelled by emotion.

When emotions run high, judgment can suffer. That is where attorneys can play a transformative role.

Why I Chose Mediation

My own journey into mediation began in 2010, and I became an accredited mediator in 2011. Over the years, I have encountered many litigation practitioners who remain sceptical of mediation. Some view it as a “soft option” or believe it is only appropriate when a party has a weak case. Nothing could be further from the truth.

Mediation does not mean surrendering your rights. It means retaining control over the outcome.

Instead of placing your future in the hands of a judge, mediator or arbitrator, mediation empowers the parties themselves to craft a solution that works for them.

That is a significant shift in power. 

Court Is Not Always the Answer

Of course, not every dispute is suitable for mediation. Some matters require judicial intervention, particularly where legal precedent must be established or urgent court relief is necessary.

But those cases are the exception rather than the rule.

The reality is that many disputes can be resolved more effectively through meaningful dialogue than through years of costly litigation.

Recognising this, our High Court Rules now require litigants to indicate, at the summons stage, whether a matter is capable of being referred to mediation. If they believe mediation is inappropriate, they must explain why.

Failure to do so can result in adverse cost consequences.

Yet despite this important development, mediation is still too often treated as a mere procedural formality—a box to tick rather than a genuine opportunity to resolve conflict.

Attorneys Have an Important Role in Mediation

There is a misconception that mediation sidelines attorneys.

The opposite is true.

Attorneys remain essential participants in the process. They can:

• Advise clients before mediation.
• Assess the strengths and weaknesses of a case.
• Help formulate negotiation strategies.
• Draft opening statements.
• Evaluate settlement proposals.
• Attend mediation sessions and provide legal guidance throughout the process.

The mediator facilitates the discussion but does not provide legal advice. That remains the attorney’s role.

Far from replacing lawyers, mediation creates an opportunity for lawyers to assist clients in achieving practical, cost-effective and lasting solutions.

A Better Way Forward

One of mediation’s greatest strengths is that it focuses not only on resolving the dispute but also on preserving relationships.

This is particularly important in family matters, where parents may need to continue co-parenting long after the legal dispute has ended. It is equally valuable in commercial disputes where ongoing business relationships may be worth preserving.

Unlike litigation, mediation is confidential. Personal disputes are not aired in open court, reputations are protected and parties retain control over both the process and the outcome.

It is faster, less expensive and often produces more durable solutions than a trial.

Most importantly, it allows both sides to walk away having been heard.

That is why attorneys, as the gatekeepers of disputes, have such an important responsibility. By encouraging clients to consider mediation at an early stage, they can help transform conflict into resolution and move parties from confrontation to collaboration.

For a list of accredited mediators, visit kznmediators.com.

Know Your Rights.

The Law Desk of Fawzia Khan & Associates
Giving YOU the Power of Attorney.

For professional legal assistance, contact us on 031 502 5670 or email info@thelawdesk.co.za.