ADR Dispute Resolution Assessment

Name and Surname: Mbalenhle Ndlovu
Student Number: ST10092290

Module Code: XBLAW6219
ASSESSMENT TYPE: TASK 1
1
Table of Contents
TASK 1......................................................................................................Error! Bookmark not defined.
Q.1.1 3
Q.1.2 6
Q.1.3 8
Q.1.4................................................................................................................................................10
REFERENCE LIST...................................................................................................................................13
2
Mbali, this is not in a legal memo format
Q.1.1
DEFINITION OF ALTERNATIVE DISPUTE RESOLUTION.
Alternative Dispute Resolution (ADR) may be defined as the alternative form of dispute resolution to
litigation or adjudication through courts. Disputes occur for various reasons and could arise from
different interactions for example the state and its organs could end up in a dispute. In western
societies disputes traditionally are resolved in court law. However, it has been recognised that courts
of law bump into shortcomings when resolving disputes that may arise. Hence the need for
alternative ways to resolve disputes satisfying both parties involved in the dispute 1.
BENEFITS OF ADR TO THE PARTIES INVOLVED.
The need for ADR has increased immensely. Mainly through the shortcomings that may be found in
the court of law. The high costs of litigation mean that justice cannot be awarded to the vast
majority of the population. The lengthy process found in the court of law means that resolution for
that dispute is found too late. The parties involved in the dispute lose a sense of control as they are
in most cases represented by other individuals who may not share their real concerns. The rules
found in civil procedure are too rigid and, in most cases, the use and nature of court proceedings can
break the personal relationship between the two parties. On the other hand, ADRs are less
expensive than court proceedings. The resolution is found quicker as it is more flexible and informal
than court proceedings. They work well in maintaining and preserving personal relationships that
may be important to the parties involved in the dispute. They create a more effective win-win
resolution in comparison to the win-lose resolution found in court law2.
MEDIATION EXPLAINED.
Mediation is a type of ADR in which the parties involved will use an independent third party who
may assist them in coming to a conclusion or agreement. It may be voluntary where the parties
choose amongst themselves to refer to the mediation dispute resolutive method. It can also be
compulsory where it concerns legislation for example the Labour Relations Act 3. Mediation is usually
associated with other processes in an attempt to resolve these disputes. They consist of con-arb,
non-binding fact-inding, facilitation, arb-con and con-opinion. Con-arb is the process in which the
parties agree to refer to the mediation resolutive dispute in which an independent third party will
assist the parties in being able to reach a suitable resolution or agreement. As stated above it may
be either voluntary or compulsory. It is referred to as the arbitration that takes place after mediation
and conciliation have failed to resolve the problem 4. Non-binding fact-finding is a process in which
an independent third party will determine the facts that may apply to the dispute. It assists the
parties in being able to agree on the facts before attempting to mediate a resolution that can resolve
1
Gerhardus, W. T. 2022. Alternative dispute resolution in South Africa: negotiation, mediation, arbitration and
ombudsmen. Juta: Cape Town.1.
2
ombudsmen. Juta: Cape Town. 2.
3
Labour Relations Act 66 of 1995.
4
3
the dispute5. Facilitation is where a facilitator will assist the parties involved design a process to
resolve the problem at hand. This process usually involves multiple parties and complex disputes.
This process is usually used to resolve building disputes such as disputes that would occur from a
group of players for example engineers6. Arb-con is where the parties involved will agree to refer to
arbitration however before making this determination the arbitrator will attempt to assist the
parties to reach a conclusion or agreement that works through conciliation. In a case where the
parties do not reach an agreement, the arbitrator will be known and bound to the parties. Through
this process, the parties are most likely to develop feelings for the strength of the case during
arbitration which could help them through conciliation 7. Con-opinion is the process in which parties
first attempt to resolve their dispute through conciliation and end up failing in which then the
conciliator will advise a non-binding opinion in which the opinion is not adjudicative in nature but
suggests a compromise by the conciliator or mediator. The parties involved will use this process to
guide in deciding on what steps to take to resolve the dispute 8.
DIFFERENT TYPES OF MEDIATION.
Commercial mediation is a type of meditation that is flexible, voluntary and confidential where a
neutral third-party independent individual will assist parties to work in a manner that is toward a
negotiated settlement. It provides a forum in which the parties can get a better understanding of
each other positions and may assist in working together to find a resolution. This type of mediation
assists the business from having to preserve business relations. It will usually occur in commercial
disputes that involve professional negligence, fraud, partnership disputes and IT disputes that may
occur.
Family/divorce mediation is a type of mediation that assists parties in being able to find an
arrangement for themselves and their children. It reduces conflict between the parties in being able
to consider the issues that need to be resolved. It assists in being able to resolve the problem faster
because you and the other party essentially have the final say over the divorce or family matters.
Essentially allowing for the parties to main control and power in the dealings. This type of mediator
may also help the parties in making arrangements for previous decisions that the parties conducted
but are no longer working but rather bringing conflict.
Court-annexed mediation is a type of mediation by which the parties involved will submit to the
mediation of a dispute before the commencement of litigation. It may also be used where litigation
has commenced however the judgement for the case has not been obtained. This type of mediation
happens in such a way that if no resolution comes from the mediation, then the matter will proceed
to a court in an open court. The mediation services in this type of mediation are provided by the
court as part of the judicial system. In most cases, this type of mediation is more compulsory than
voluntary. Decisions from this mediation are made from the application of law in most cases.
5
6
7
8
4
NB v MB9 case AND THE JUDGES VIEWS ON MEDIATION.
The judge mentioned in this case that the legal costs made the case more of a tragedy as conducting
a legal proceeding is not cheap. He believed that the money used could have gone to better use such
as the children’s schooling. This suggests that the judge knows just how financially burdening legal
proceedings are and thought that were other ways in which this dispute could have been resolved.
He believed that meditation can produce good results, especially in difficult circumstances and when
conducted by one of the few people in the country who have been trained for such a process. The
judge highlighted the fact that, unlike the negotiation settlements that may occur between the two
legal advisors, the mediation process allows for the strictest confidentiality in which the mediator
isolates the interests and uses the information provided to find a common ground between the
parties. He mentioned that mediation brings a benefit of reality to negotiations. The judge made
referrals to the appropriateness of the commercial mediation process and stated just how much
family mediation would be able to archive this kind of appropriateness. The benefits of family
mediation are that the rights of the major, minor and children are taken into consideration. The
horrendous process of divorce was explained to be less traumatic when the financial and emotional
burden is reduced, which would usually accompany the family in legal proceedings in an open court.
The judge also mentioned the duty and care of the lawyer that usually comes into conflict with what
happens in reality. They are seen to bring disparage to family law in which they do not push for the
satisfaction of their client but rather seek to outshine the revivals that they may make throughout
the course of their career. He mentioned the importance of lawyers to make such a process fully.
understandable and known to their client and this process could bring more success than failure The
judge mentioned that these types of emotions and attitudes can create a barrier to the client’s
settlement. The judge also highlighted England’s stance on mediation and mentioned how much of a
burden has been removed from court rolls. The success rate of the mediation process in England is
seen to be between 80 and 90 per cent. The judge lastly mentions that he feels that the family, in
this case, would have been served in a better manner in family meditation than what they
experienced in an open court.
9
MB v NB 2010 (3) SA 220 (GSJ).
5
Q.1.2
IN THE ARBITRATION BETWEEN:
PARTY A: Thandi
And
PARTY B: Headmaster of Mountain View High School.
STATEMENT OF CLAIM
1. The Claimant is Thandi the female Maths teacher at Mountain View High School
currently residing at 1 Jean Avenue, Melrose, Johannesburg.
2. The Respondent is the Headmaster at Mountain View High School which is a private
school located in Mountain View, Johannesburg.
3. The parties are in dispute in respect of the terms and conditions of employment which
were amended by the headmaster at the time of the former Head of Department’s
resignation. The Claimant first wished to approach the CCMA as she believed that
Mountain View High School’s conduct constitutes unfair labour practices according to
section 186 of the Labour Relation Act. She however agreed to settle this dispute in the
arbitration process.
4. Notwithstanding the conciliation of that dispute on or about 4 September 2022, the

dispute remained unresolved.
5. DETAILS OF CLAIMANT CONTENTION
Thandi as a maths teacher is expected to carry out her duties as such on top of the increase
in workload as the temporary Head of the Department. She is expected to complete these
duties in the new position with no increase to her salary and is told by the headmaster that
she is to take the role without any remuneration. She is further informed that this role as the
Head of the Department is not up for negotiation and she is expected to take on the extra
load of work. She has
6. DETAILS OF RESPONDENTS’ CONDUCT.
Increased workload without any remuneration. An expectation of this role is to be stepped

into by Thandi, allowing for no negotiation to take place.
6
7. WHEREFORE Claimant claims from Respondent
1. Remuneration for the increased workload.
2. Allowance to negotiate her new employment terms and conditions.
Dated at Johannesburg on this the 12 th day of September 2022.
Mbalenhle Ndlovu CA of senior partner Thembi Sithole.
TO: Pamela Letsela (ARBITRATOR)
AND TO: James Witley (ATTORNEY OF RESPONDENT)
7
Q.1.3
MEDIATION AGREEMENT
This Mediation Agreement (“Agreement”) is made and effective 14 September 2022.
BETWEEN: Thandi the maths teacher and prospective Head of Department currently residing at 1
Jean Avenue, Melrose, Johannesburg.
AND: The Headmaster at Mountain View High School which is a private school located in Mountain
View, Johannesburg.
WHEREAS: Both parties shall appoint and retain the services of the Mediator to assist them in
resolving the dispute that currently stands between them.
WHEREAS: The parties understand that mediation is a process where they attempt with the
assistance of the Mediator to reach a suitable agreement that may please all.
WHEREAS: Both parties are aware that when an agreement is reached, they may call upon the
Mediator or one other lawyer to draft up a document that states that they have reached a suitable
consensus.
In consideration of the terms and conditions of the agreement the parties agree as follows:
1. THE APPOINTMENT OF THE MEDIATOR

a) The parties hereby appoint Susan Spangenberg as the Mediator for the dispute at
hand and to conduct their negotiations. The parties are t understand that the
mediation process should assist the parties to reach an agreement collaboratively
and informally.
b) Both parties are to understand that the Mediator has no power to decide the
disputed issues. The parties should also understand that mediation is not a process
that may include independent legal advice. The parties are to secure such advice
throughout the mediation process.
c) The parties are to understand that the objective of the Mediator is to facilitate the
parties to reach their consensus. They should also understand that the Mediator is
to work on behalf of each party equally.
2. ROLES AND RESPONSIBILITIES OF THE MEDIATOR

a) The Mediator is meant to act as a facilitator and should be impartial and neutral
b) The Mediator has the discretion to conduct the mediation process in a way the
mediator chooses.
c) The mediator will conduct the mediation process without prejudice and bias.
8
3. The parties are to abide by the mediation process and the decisions that the Mediator
chooses.
4. Each party will cooperate in good faith with the Mediator.
5. The mediation process is voluntary and the Mediator or any of the parties involved may
terminate the mediation at any time.
6. On The occasion that an agreement is not reached, the parties may not be prejudiced
and should be referred to elsewhere.
7. Any agreement outcome in the mediation process should be recorded in a settlement

agreement signed by the parties involved as a record of themselves. The mediator is to
assist the parties in the preparation of such a document.
8. The settlement should be final and binding.
Signed at Johannesburg on 15 September
2022 PARTY A:
PARTY B:
Acceptance by the mediator
I accept the appointment as a mediator on the terms of the MEDIATION AGREEMENT.
MEDIATOR:
9
Q.1.4
Jean Avenue
Melrose
Johannesburg
2092.
LETTER TO THANDI WITH REGARDS TO THE UNDERSTANDING OF THE DIFFERENT TYPES OF ADR.
Good day ma’am.
I am reaching you on behalf of Stanley Attorneys Inc as the junior attorney and CA. I write this letter
in hopes that it assists in able have a better understanding of the ADR process and the different
forms of ADR that one could look into. As you know Alternative Dispute Resolution (ADR) may be
defined as the alternative form of dispute resolution to litigation or adjudication through courts.
Disputes occur for various reasons and could arise from different interactions for example the state
and its organs could end up in a dispute. In western societies disputes traditionally are resolved in
court law. However, it has been recognised that courts of law bump into shortcomings when
resolving disputes that may arise. Hence the need for alternative ways to resolve disputes satisfying
both parties involved in the dispute. The different kinds of ADR that will be explained in this letter
include conciliation, facilitation, negotiation and arbitration. The process of ADR is also expected to
be explained in detail as well as the CCMA in its different stages of ADR.
Facilitation is where a facilitator will assist the parties involved design a process to resolve the
problem at hand. This process usually involves multiple parties and complex disputes. This process is
usually used to resolve building disputes such as disputes that would occur from a group of players
for example engineers. Conciliation is defined as the process in which a third party will appoint to
help settle the disputes that may occur between parties by use of persuasion. The role of the
conciliator is to facilitate, evaluate and intervene in the process. Conciliators are regulated by the
Arbitration and Conciliation Act10. This process aims to come to an agreement which is seen to be as
executable as in the civil court. The CCMA is seen to have jurisdiction according to the LRA. Disputes
may be referred to by the CCMA as a way of the conciliation process. Negotiation is the process that
most people use daily to settle a dispute. The three most common types of negotiations are
positional, interest-based and principled negotiation. Positional negotiation is where the parties
from fixed positions wish to through a series of confessions and attempts reach an agreement. An
example of this type of negotiation type would be where a buyer and seller of a house start with a
price and through offers agree11. The interest-based negotiation is based on the interests of the
10
Arbitration and Conciliation Act 42 of 1965.
11
10
parties where they negotiate in such a way that brings the most satisfaction to their interests. An
example could include an instance where an employee wishes to have more flexible hours to do
something else and the employer wishes to save some money on salary and wage costs. The parties
will conclude to reduce the working hours and essentially the pay to meet both their needs 12.
Principled negotiation is where certain principles are used to find a resolution. This process could be
used to serve as a link or bridge between positional and interest-based negotiation 13. Arbitration is
the process where parties will come to the last destination to resolve their disputes 14. The
disadvantage that comes with kind of ADR is that the parties lose control of what the outcome could
be however the upside is that once the dispute is resolved the determination is enforceable and
binding. There are four kinds of arbitration, which are: expert assessment, binding fact-finding,
advisory arbitration and a mini trail. Expect assessment occurs when a contract is for a specific type
of field such as engineering. In such a case an expect adjudicator will make his decision based on the
information and documentation placed in front of him with the accompany of their expert
knowledge. The decision taken up by the expert is final unless the parties wish to take the matter to
arbitration15. Binding fact-finding is where an independent third party will determine the differences
in the facts. The third party does not decide the outcome however their determination of the facts is
binding to the parties16. Advisory arbitration is where the third party will make a non-binding
determination after having heard the cases. The parties will then decide whether they wish to use
the determination as an outcome or resume arbitration to solve the dispute 17. The mini-trial is
where the parties will be allowed to present their cases to an adjudicator. The parties will then meet
without the adjudicator in which they find a settlement. If they fail to find a settlement the
adjudicator will make a non-binding determination in which the parties will meet again to reach a
settlement. Should they still not find a conclusion they should refer to arbitration18.
The process of ADR involves the following steps a hearing, an appeal and a review. In the
Administrative hearing process, things may occur in either a formal or informal manner. The parties
may have been allowed the opportunity to involve legal representatives. Certain principles form
part of the hearing. One that a party may be heard and secondly that the public authority may not
exceed its powers. The administrative appeal will take place in a case where a person is not satisfied
with the decision that was taken during an administrative hearing. This appeal can either be internal
or external and this may result in the matter being conducted in a new hearing. Administrative
reviews can happen when the decisions taken in hearings and appeals are reviewed. It can either
12
13
14
15
16
17
18
11
happen in an administrative tribunal by legislation or in an open court. This cannot happen unless
the remedies used included the use of legislation 19.
The CCMA is known as the Commission for Conciliation, Mediation and Arbitration. It was
established as an independent dispute resolution body that functions according to the Labour
Relation Act. It aims to promote the fair labour practices of employees in workplaces and resolve any
disputes that may arise in the workforce 20. The CCMA is based on the different stages of ADR that
include Conciliation, Arbitration and Con-Arb. Conciliation is defined as the process in which a third
party will appoint to help settle the disputes that may occur between parties by use of persuasion.
The role of the conciliator is to facilitate, evaluate and intervene in the process. It is informal in
nature where a commissioner is meant to meet with the parties for 30 days to resolve the dispute at
hand. They may be separate meetings held between each party and the commissioner. Arbitration is
the process where parties will come to the last destination to resolve their disputes. The parties will
be able to state their case and then the commissioner will hand an arbitration after 14 days. Con-arb
is the process in which the parties agree to refer to the mediation resolutive dispute in which an
independent third party will assist the parties in being able to reach a suitable resolution or
agreement. As stated above it may be either voluntary or compulsory. It is referred to as the
arbitration that takes place after mediation and conciliation have failed to resolve the problem. It
may be conducted on the same day or the day after each other.
In conclusion, the need for ADR has increased immensely. Mainly through the shortcomings that
may be found in the court of law. The high costs of litigation mean that justice cannot be awarded to
the vast majority of the population. The lengthy process found in the court of law means that
resolution for that dispute is found too late. The parties involved in the dispute lose a sense of
control as they are in most cases represented by other individuals who may not share their real
concerns. The rules found in civil procedure are too rigid and, in most cases, the use and nature of
court proceedings can break the personal relationship between the two parties. On the other hand,
ADRs are less expensive than court proceedings. The resolution is found quicker as it is more flexible
and informal than court proceedings. They work well in maintaining and preserving personal
relationships that may be important to the parties involved in the dispute. They create a more
effective win-win resolution in comparison to the win-lose resolution found in court law. I hope that
this letter served as a good description of being able to understand all that relates to ADR.
Kind Regards,
Mbalenhle Ndlovu (CA).
19
ombudsmen. Juta: Cape Town. 8, 9.
20
ombudsmen. Juta: Cape Town. 110-117.
12
REFERENCE LIST
Textbook:
Gerhardus, W. T. 2022. Alternative dispute resolution in South Africa: negotiation, mediation,

arbitration and ombudsmen. Juta: Cape Town.
Case law:
MB v NB 2010 (3) SA 220 (GSJ).
Legislation:
Arbitration and Conciliation Act 42 of 1965.
Labour Relations Act 66 of 1995.
13

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Name and Surname: Mbalenhle Ndlovu

Student Number: ST10092290

BENEFITS OF ADR TO THE PARTIES INVOLVED.

DIFFERENT TYPES OF MEDIATION.

PARTY B: Headmaster of Mountain View High School.

4. Notwithstanding the conciliation of that dispute on or about 4 September 2022, the

5. DETAILS OF CLAIMANT CONTENTION

6. DETAILS OF RESPONDENTS’ CONDUCT.

Increased workload without any remuneration. An expectation of this role is to be stepped

Dated at Johannesburg on this the 12 th day of September 2022.

Mbalenhle Ndlovu CA of senior partner Thembi Sithole.

TO: Pamela Letsela (ARBITRATOR)

AND TO: James Witley (ATTORNEY OF RESPONDENT)

This Mediation Agreement (“Agreement”) is made and effective 14 September 2022.

1. THE APPOINTMENT OF THE MEDIATOR

2. ROLES AND RESPONSIBILITIES OF THE MEDIATOR

7. Any agreement outcome in the mediation process should be recorded in a settlement

Signed at Johannesburg on 15 September

Acceptance by the mediator

I accept the appointment as a mediator on the terms of the MEDIATION AGREEMENT.

Good day ma’am.

Mbalenhle Ndlovu (CA).

Gerhardus, W. T. 2022. Alternative dispute resolution in South Africa: negotiation, mediation,

MB v NB 2010 (3) SA 220 (GSJ).

Arbitration and Conciliation Act 42 of 1965.

Labour Relations Act 66 of 1995.

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