Alternative Dispute Resolution

Advocate CG Marnewick SC wrote “Litigation (like surgery) is by nature risky, intrusive, painful and expensive. Alternative dispute resolution or ADR for short creates a platform for parties to resolve disputes in a manner which is flexible, non-hostile, confidential and a lot more cost-effective in comparison to traditional formal litigation. The main shortfalls of traditional litigation can be summarised as follows:

First and foremost, the process of litigating in court can be very costly and does not guarantee a favourable outcome for the parties involved. This process may also sour relationships between parties whereas ADR provides a platform for disputes between parties to be settled in an amicable fashion.
Parties to litigation proceedings run the risk of having judgement passed down in the favour of the opposing party. This combined with the cost implications as well as the already time-consuming nature of our court system due to various reasons should be reason enough to consider ADR.
Furthermore, there are also instances where the use of ADR methods is compulsory. An example of this is where two parties agree in terms of a contract to have any disputes arising from that contract resolved by way of arbitration. In addition, employers and employees represented by bargaining councils may also agree to have their disputes resolved via arbitration or mediation in their collective bargaining agreement.

Below follows a brief description of the most commonly used forms of ADR in practice namely Negotiation, Mediation and Arbitration.

Negotiation

Negotiation is something that happen in our daily lives without us even noticing most of the time. When your child insists on having something that you’ve already said “no” to, the two of you are engaging in a negotiation. When you ask your lecturer for an extension on your assignment, you are negotiating. When you ask your spouse for a foot massage after a long day’s work, you are negotiating -especially if they are tired as well. And, believe it or not when the car guard asks you for a little something-something for his efforts, the conversation that it sues (be it in their favour or not) too is negotiation.

So, what do these scenarios all have in common and how do they fit into the legal sphere. The answer is simply communication. When two or more parties are negotiating there is some sort of back-and-forth communication in order to reach a solution for a specific problem or to resolve a specific dispute. In contrast to mediation, there is no independent third party that facilitates the process, nor as in the case of arbitration is there an independent, impartial third party who makes the final decision. Therefore, when the parties involved are unable to reach an agreement, the next step will be to move to mediation which will be discuss below.

The types of negotiation styles can be categories into two groups, namely integrative win/win approach and the distributive win/lose approach. In the former, the goal is to reach an agreement which is favourable for both/all parties involved where the later seen as a fixed-sum-game in that each party seeks to impose maximum gains for themselves and by default maximum losses for the other party. Ideally, we should strive to use the win/win approach.

When should negotiation be considered?

Family disputes.
Employee – employer disputes.
When drafting any type of agreement / contract be it a contract of purchase and sale, a lease contract or a contract relating to the transfer of ownership of immovable property.
Where parties wish to maintain confidentiality.
Where parties wish to control the outcome of the dispute.
Where parties seek to resolve the dispute in a flexible, cost- and time efficient manner.

Mediation

Where negotiations failed to result in a definitive outcome the next step would be to move to mediation. Mediation can therefore be seen as an extension of the negotiation process, which includes an independent third party which facilitates the conversation between the various parties. Mediation is by contrast to arbitration a less strict approach in that the third party merely guides the parties to come to an agreement as opposed to make a final decision.

When should mediation be considered?

Divorce matters.
Family disputes.
Employer-employee disputes.
Where parties wish to maintain confidentiality.
Where parties wish to control the outcome of the dispute.
Where parties seek to resolve the dispute in a flexible, cost- and time efficient manner.

Arbitration

At first glance arbitration proceedings are similar to that of court proceedings. Just as the court has a judge that adjudicates upon the dispute between the two (or more) parties, so too does arbitration proceedings have an “impartial third party” known as the arbitrator who listens to both sides of the matter and then makes a decision know as an arbitration award. As with regular court proceedings both parties have the opportunity to present evidence and to challenge the opposing parties’ evidence. The outcome of the arbitration award is usually binding on both parties, meaning that the decision may not be taken on appeal. The decision may, however, be taken on review.

When should arbitration be considered?

Where parties wish to maintain confidentiality.
Where the subject matter of the dispute requires the dispute to be heard by an expert in a certain field.
Where parties seek finality on a matter.
Where parties seek a flexible time-and cost-efficient solution for their dispute.
Where parties seek to maintain a healthy relationship

Our services

Assessing which form of ADR would be best suited for a particular matter.
Negotiation of contracts.
Negotiations between parties to a divorce.
Negotiations between parties in matters relating to the rights of a child, and parental rights and responsibilities.
Negotiations relating to disputes between family members.
Negotiation between employers and employees including but not limited to strikes and lock-outs, facilitating negotiations between employers and bargaining councils.
Drafting of collective bargaining agreements.
Settlement negotiations.
Drafting of divorce settlements.
Mediation between parties to a divorce.
Mediation between parties relating to the rights of a child, and parental rights and responsibilities.
Mediation of matters relating to family disputes.
Mediation of employer-employee disputes including bit not limited to strikes and lock-outs, mediating disputes between employers and bargaining councils.
Drafting dispute resolution and arbitration clauses
Advice relating to procedural aspects of arbitration.
Facilitation of arbitration proceedings.

Our experience

Assessing which form of ADR would be best suited for a particular matter.
Negotiation of contracts.
Negotiations between parties to a divorce.
Negotiations between parties in matters relating to the rights of a child, and parental rights and responsibilities.
Negotiations relating to disputes between family members.
Negotiation between employers and employees including but not limited to strikes and lock-outs, facilitating negotiations between employers and bargaining councils.
Drafting of collective bargaining agreements.
Settlement negotiations.
Drafting of divorce settlements.
Mediation between parties to a divorce.
Mediation between parties relating to the rights of a child, and parental rights and responsibilities.
Mediation of matters relating to family disputes.
Mediation of employer-employee disputes including but not limited to strikes and lock-outs, mediating disputes between employers and bargaining councils.
Drafting dispute resolution and arbitration clauses
Advice relating to procedural aspects of arbitration.
Facilitation of arbitration proceedings.