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Mediation vs Arbitration - Which one suits your dispute resolution?
02 October 2017  | Koketso Selahle
 
Mediation and Arbitration are processes used to settle legal disputes.

However, not all disputes can be settled through arbitration and mediation, for example:

•     insolvency proceedings;
•     matrimonial causes except settlement of terms of separation;
•     and divorce cannot be referred for arbitration.



In a case where mediation has failed, the matter can be resolved through arbitration which will be more binding on the parties.

The Arbitration process is regulated in terms of the Arbitration Act 42 of 1965.

The Mediation Process

Mediation is more voluntary, without prejudice and is non-binding; however, a mediation agreement becomes binding once both parties reach and sign a settlement agreement.

A non-prejudice clause should form part of any mediation or arbitration process.

During the mediation process parties may concede or produce evidence which might at the later stage be detrimental to their case.

    E.g. communication or concession, which at the later stage might be used as evidence.

The aim of mediation is to assist parties who genuinely want to resolve a dispute, by stating or even conceding to the true state of the affairs or dispute.

If parties are barred from conceding to the true cause of a dispute in fear that such concession might be used against them, this may result in parties refraining from negotiating freely.

An Arbitration Agreement

The parties involved can then choose to enter into an arbitration agreement, instead of filing a law suit in court.

Such agreements are brought about by any legal claims, mostly against the employment contract or defined legal relationship, whether contractual or not.

Section 7(1) of THE ARBITRATION AND CONCILIATION ACT, 1996, defines an arbitration agreement as, where parties, binds themselves to all or certain disputes which arises between them, in respect of a defined legal relationship, whether contractual or not.

When parties include an arbitration clause in their contract, it constitutes an arbitration agreement.
The arbitration agreement must be in the form of a document/s or writing and entered into by a competent person who will sign such a document.

The Advantages and Disadvantages of Mediation and Arbitration

The advantage of mediation and arbitration is that parties are able to choose a venue and time convenient to them, which is private and confidential. While court disputes are accessed by the public.

The process is informal compared to the courts and this allows the parties to be more involved, which helps to create more comfortable atmosphere, one where parties may be more keen to resolve the dispute.

The purpose of the arbitration is to settle a dispute as soon as possible without court delay.

The disadvantage of arbitration is the dissatisfied party can only appeal the matter.

Greyvensteins – Arbitration and Mediation Attorneys Port Elizabeth

Parties can include the arbitration clause for future disputes or present disputes, which Greyvensteins Inc. have a competent team to mediate and arbitrate disputes.

Our legal team are impartial and objective in receiving and considering evidence or submissions from the parties.

The Greyvensteins Inc. legal team take pride in arbitrating or mediating disputes irrespective of the sides/parties.

We take pride in speedily assisting parties with dispute resolution, helping to minimise costs and lengthy processes.
 
 
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