COURTS

ALTERNATIVE DISPUTE RESOLUTION (ADR)

THE LEGAL PROFESSION

Theme 2: Alternative or Appropriate Dispute Resolution

Chapter 13 (pp 319-337)
 OUTCOMES

LO7 LO8
Distinguish between Critically evaluate the
litigation, arbitration, importance of Alternative
negotiation and Dispute Resolution (ADR)
mediation in the SA legal system
 What is the distinction between
litigation, arbitration, negotiation
and mediation?
(LO7) (pp. 332-334)
▪ Not always the duty of courts to resolve disputes
▪ Most disputes are settled by people themselves
▪ If parties cannot settle their disputes, they may turn to courts
▪ BUT formal litigation does not always provide the type of solution + there are problems with it:
▪ Litigation (and legal representation) is very expensive
▪ Some cases take a long time before they are settled
▪ The nearest court is often faraway from the parties’ residences
▪ policing is often inadequate affecting implementation of the law of criminal procedure
▪ Court proceedings difficult to understand, traumatic and alienate people culturally
▪ Accusatorial (adversarial) process does not always satisfy parties (legal representatives take charge of the
case; eventual win-lose situation)
▪ Thus alternative to the courts known as ADR • Parties settle dispute themselves or with the help
of a third party • Can be inexpensive, speedy and less aggressive
 Negotiation
Takes place when conflicting
parties talk to each other to find
a solution which satisfies both
Parties are in control of the whole
process and solution
No third party involved
Win-win situation
Purpose is to find common
ground
Parties must be serious in their
intention to settle the matter
Process must not be used to
further conflict
Mistrust and past conflict can
jeopardise the process
Simple negotiation – neighbour
talks to neighbour making noise
Complex negotiation – parties get
lawyers to negotiate on their
behalf
Mediation
Takes place where parties ask a
third party (mediator) to assist in
finding a solution through
negotiation
Amounts to negotiation with the
aid of a third party
Mediator does not decide but
assists and encourages parties to
find a solution for themselves
Mediator acts as go-between
Mediator communicates with the
parties individually
Information given by one party to
the mediator is confidential
Mediator assists the parties to
consider all possible solutions
Parties find a solution themselves
Solution is acceptable to both –
win-win situation
Decision not left in a third party
Mediator must be impartial
Arbitration
Two parties conclude a contract
and agree to appoint a third party
(arbitrator) to resolve the dispute
Parties can appoint anybody, but
is usually an expert in the field
Process like that of the court
(arbitrator listens to both parties
then makes a decision)
Parties agree on process and
parameters for arbitrator’s
decision
Arbitrator’s decision is final.
Parties are compelled to abide No
right of appeal
Arbitrator’s decision can be made
a court order
If arbitration agreement is in
writing, it is governed by the
Arbitration Act
Arbitration is used? Not used?
Advantages? Disadvantages?
 LO8
▪ Not all disputes are resolved by means of ADR
▪ ADR is becoming very popular in SA
▪ Some organisation specialise in ADR and provide professional services and assistance
▪ E.g. Arbitration Foundation of Southern Africa (AFSA); Association of Arbitrators; Commission for
Conciliation, Mediation and Arbitration (CCMA)
▪ Labour disputes are resolved through ADR before going to Labour Court
▪ Large institutions with many employees have a bargaining council to resolve labour disputes
▪ CCMA try and resolve labour disputes through conciliation; if unsuccessful, arbitrate the matter; if
no powers must be referred to Labour Court
▪ Principle of ADR is applied informally in black townships
▪ Justice tribunals in 1901
▪ Makgotla in 1970s
▪ People’s courts in 1980s
▪ Community courts e.g. Alexandra Township