ALTERNATIVE DISPUTE RESOLUTION (ADR)

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Alternative Dispute Resolution (“ADR”) refers to any method of resolving disputes without resorting to ordinary litigation – in other words, instituting legal proceedings in a civil court.

ADR is a cost effective, flexible, and confidential method that can be used outside of or in addition to formal court proceedings.

ADR is often regarded as a better option than the more conventional mechanisms for the settlement of labour, construction and divorce disputes in particular, because of the lower cost and greater speed involved. ADR procedures are mostly collaborative by nature, allowing parties involved the opportunity to understand each other’s positions in the dispute.

In South Africa, ADR has not only been formalised, but has also been made compulsory as part of the transformation of the South African labour relations system after 1994. The Commission for Conciliation, Mediation and Arbitration (CCMA) is one institution specifically tasked with ADR-type processes.

The most well-known alternative dispute resolution methods in South Africa are negotiation, mediation, and arbitration.

NEGOTATION

Negotiation is a process where parties involved in a conflict discuss solutions before reaching a settlement between themselves. This is usually the first ADR method used. Should the parties’ efforts not resolve the dispute, they may turn to either mediation or arbitration.

MEDIATION

Mediation is a voluntary alternative dispute resolution process whereby parties seek to resolve a dispute in good faith and without the formal involvement of a court. The mediation process involves the appointment of a qualified third party, known as a mediator, to facilitate discussion before assisting parties to come to a mutual agreement or solution.

ARBITRATION

Arbitration is a method of ADR that makes use of an arbitrator (an impartial third party) to hear every side of a dispute. The arbitrator will make a binding decision which will in turn resolve the dispute between the parties.

In an arbitration hearing the arbitrator gives both parties an opportunity to present their cases regarding the issue in dispute by leading evidence, presenting documents, examination of witnesses, and even conducting an inspection of a particular site / premises, where applicable.

An arbitrator decides on the procedure to be followed, being mindful to ensure that the hearing is conducted with the minimum of legal formalities while ensuring that each party is given a fair opportunity to present their case.

ADR has the potential of bringing about a more beneficial and workable solution to disputes.

At Pagdens Attorneys we assist with all alternative dispute resolution related matters, including negotiations, mediations, and arbitrations. Should you require any assistance, please do not hesitate to contact us at info@pagdens.co.za or 041 502 7200.

This article is for general information should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact an attorney for specific and detailed advice. Errors and omissions excepted (E&OE)