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Alternative Dispute Resolution

Alternative Dispute Resolution in South Africa

Definition: alternative dispute resolution (ADR) refers to the process of settling disputes using negotiation, mediation or arbitration rather than litigation.

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

Some of the disputes that can be resolved using ADR include but are not limited to:

  • Divorce actions
  • Personal injury claims
  • High-profile labour disputes

Unlike adversarial litigation, ADR procedures are mostly collaborative by nature, allowing parties involved the opportunity to understand each other’s positions in the dispute.

Using ASR to resolve disputes also allows the parties to establish more creative and practical solutions that suite everyone involved in the dispute.

Examples of Alternative Dispute Resolution Methods

  • Arbitration
  • Mediation
  • Negotiation

What is 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 then issues a decision to resolve the dispute.

Characteristics of Arbitration

  • It is consensual – it can only take place if both or all parties agree to it
  • The parties select the arbitrator – both or all parties must agree on the chosen arbitrator
  • It is neutral – the Arbitration Act of South Africa makes no distinction between international and domestic arbitrations
  • It is confidential – the arbitration and any disclosures made during the procedure are kept confidential
  • The arbitrator’s decision is final – once the decision has been made, there is no room left for further discussion

What is Mediation?

Another method of ADR, 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.

The mediator assists with the following during the discussion:

  • Identifying issues, both obvious and underlying
  • Exploring areas of possible compromise
  • Clarifying priorities
  • Generating various options to resolve the dispute

Negotiation

This method of ADR is usually attempted between the parties first. If their efforts do not resolve the dispute, they may turn to either arbitration, mediation or assisted negotiation.

Negotiation is a process where parties involved in a conflict discuss solutions before reaching a settlement between themselves.

In cases where parties opt for unassisted negotiation to resolve their conflict, it is still advisable to consult their attorneys before coming to a final agreement. This is to ensure that all parties are aware of their respective rights and obligations.

Van Deventer & Van Deventer Incorporated – Alternative Dispute Resolution in South Africa

Our attorneys provide mediation, arbitration and negotiation support during alternative dispute resolution procedures.

We advise which method is best suited to the type of dispute before offering our expertise in finding practical solutions to resolve them.

For more information about alternative dispute resolution in South Africa and how our attorneys can assist you with this, please contact us.