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Alternative Dispute Resolutions (ADR)

Alternative Dispute Resolutions (ADR)

Date: 2012-11-15
Alternative dispute resolutions (ADR) have gained global recognition as an acceptable alternative to litigation. ADR normally refers to any process other than formal litigation, where an independent and impartial person assists disputing parties to try to resolve their dispute.

Arbitration, mediation and negotiation fall under the ADR banner. Arbitration and mediation offer a quicker way to resolve a dispute, are less formal, and far more cost effective than taking a matter to court. Arbitration is conducted along the lines of a trial court.

The arbitrator acts as a judge/magistrate. The arbitration process can be reviewed but is not appealable. Not all matters can be arbitrated. For example, it's prohibited to get divorced through arbitration. Interdicts, property transfers, deciding on a person's mental capacity are some other issues, which cannot be arbitrated.

Mediation in divorce however is allowed. Mediation is a voluntary, confidential and successful process where both parties choose a mediator to try and reach a settlement between them.

The mediator does not have the power to make any findings of fact or law and acts as a facilitator in the dispute. Together with the parties, he/she will attempt to find a workable solution to achieve a win-win situation.

Last week, I was privileged to attend a two-day conference on the 'court based mediation system'. This is a system, which is set to become part of our litigation process.

The draft Rules on Mediation were drawn in 2011 and the final Rules are to be released in the foreseeable future. Once this is released, word out is that this process will take place in the form of a pilot project, for a two-year period and will be restricted to all High Court matters.

Thereafter it will be implemented in both High Court and Magistrates Courts across the country. As soon as a matter is defended, both parties must submit their dispute to mediation.

A dispute resolution officer will select a court appointed mediator to hear the matter and the parties must submit to mediation within a specified time period. The Mediator would be required to then issue a certificate of outcome informing the court either that the matter has been settled or that the parties could not reach settlement.

If a party refuses to submit to mediation, he/she will be required to sign a memorandum recording their refusal and the court could make an adverse costs order against them. Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.