In South Africa, Alternative Dispute Resolution or ADR is a mechanism used by parties who want to avoid having to go to court with regard to a dispute that they have.
ADR covers a broad range of methods that are specifically designed to resolve disputes via negotiation, mediation and arbitration. An ombudsman dispute resolutions process is a very good example.
ADR principles have always been a core part of the dispute resolution practice in South African customary law and its effectiveness is based on: the voluntary participation and co-operation of the parties to the said dispute; how accessible it is and how affordable it is.
Why Alternative Dispute Resolution?
Primarily one will opt to use ADR as a means to either cut costs and or to avoid the stiff atmosphere of a court room setting and essentially the delays and stress that come with taking that route.
Objectively these methods are used to encourage parties to work with one another, with the assistance of a neutral party, having one goal in mind with respect to resolving their contentious issues by agreeing to a mutually acceptable solution.
The ADR Process
An ADR process means that one has options. In other words, other procedures are made available to a party other than litigation or civil application procedures with respect to resolving civil disputes.
These will include as mentioned above negotiation; conciliation; mediation and arbitration, just to name a few.
This will usually come first. Parties will discuss the issues that they have with one another with the objective of setting their differences aside and reaching an agreement.
In a perfect world parties will directly communicate with one another without a third party being present, like a mediator, and in turn persuade one another to come to an agreement that best suits the situation.
Costs are curtailed here.
This requires a neutral third party to be involved, as this person will assist the parties to reach a mutually acceptable resolution to their dispute.
This process is not binding as the mediator is not the one who decides how the dispute will be resolved.
This process is used to avoid direct confrontation especially if the parties are either family members or have a business relationship for example.
This process will serve as a final mechanism with respect to resolving the parties’ dispute due to mediation proceedings failing.
An arbitrator will be appointed to a specific matter due to their skill and expertise.
He/she will then hear both sides of the argument and will make a final decision (called an award) that can be binding on the parties, if so agreed.
Advantages & Disadvantages of ADR proceedings
Advantages of ADR:
• The proceedings are informal. One does not have to deal with the formal stress of a court environment and all the rules that come with taking your matter there;
• This is voluntary and private in nature in that the parties have more control over how the dispute is resolved than having this resolved by way of litigation;
• Communication is encouraged in order to maintain the relationship, while litigation promotes acrimony and conflict;
• These proceedings are confidential. Parties can focus on the facts of the matter and not worry about what the public may think; and
• These proceedings avoid costly litigation procedures, the costs of counsel etc.
Disadvantages of ADR:
• If parties agree that the decision reached will be binding, they usually lose the possibility of securing a court judgment and the protection that comes with it
• One might incur more costs as the ADR process has no guarantee. If the dispute is not resolved through an ADR process, one might have to spend more time and money on having the matter resolved through normal litigation proceedings;
• Parties at the end of the day have access to less information about the other parties case than what they would have if they opted for the litigation process.