The long and short of alternative dispute resolution and why you should consider it.

04 November 2019 ,  Natasha du Preez 470

The most common form of dispute resolution is litigation. However, for obvious reasons, the consequences of litigation rarely gives way to a positive experience. Especially, if one considers the social, economic, emotional or costly impact of litigation on individuals, who are party thereto.

 

Litigation is well known for being a lengthy process, in some instances, it takes years to gain an outcome, or to rescind, review or appeal an award. Inevitably, legal fees and other costs accumulate at a swift pace, with no certainty or end in sight.  More importantly, parties are subject to an adversarial process which supports conflicting one-sided positions held by individuals, groups or entire societies, which is then determined by an adjudicator.

 

Consequently, our courts, take the view that litigation should be considered as a last resort. The idea is to rather salvage relationships and equip parties to drive their own outcomes. In addition, alternative dispute resolution, such as mediation brings about more certainty for the parties involved, since they are able to retain control over the dispute to work out a mutually agreeable settlement through compromise and thereby gain finality.

 

At present, our law is rapidly evolving into the sphere where mediation will become embedded in the civil rules of litigation. Whilst the new statutory proposals might seem unfamiliar, it is far from it given the fair amount of corporate arbitrations. Also, on closer view of our family- and labour law, it shows that in most instances, resolution amongst the parties must first be canvassed.  

 

On particular consideration of the Labour Relations Act, 66 of 1995, as amended, once a matter has been referred the parties must first make a genuine attempt to settle the dispute. Conciliation is accordingly peremptory unless it concerns a dispute which falls within the jurisdiction of the Labour Court, where it acts as a forum of first instance.

 

Like mediation, conciliation is a voluntary, flexible, and confidential process. Essentially, the parties seek to reach an amicable settlement through the assistance of a neutral third party. If the matter remains unresolved, for whatever reason, an arbitration may flow from it, depending on the nature of the dispute.  

 

Perhaps, our civil and criminal law process has always been structured, to embrace mediation. Firstly, it appears evident from the process required in civil matters that a letter of demand should, as the starting point be sent. In this regard, before digging into serious conflict with the other party, you are expected, to write him or her and call on them to perform, either in a specific manner or to refrain from doing something. Alternatively, you place him/her/it on terms to make or honour a payment.  Secondly, insofar as criminal proceedings allow for mediation, it has always allowed for a settlement by virtue of a plea and/or sentence agreement.

 

Ultimately, mediation invites the possibility of a settlement, at a lower cost, leaving the parties in a position to find a solution. Legal practitioners, Judges and others alike, may just welcome statutory alternative dispute resolution with open arms in the civil domain, similar to that of other fields of our law.

 

At the end of the day, communication with the client remains a key priority, irrespective of the process followed, whether it be litigation or alternative dispute resolution, such as mediation. The latter being a valuable consideration for all. It is likely to be doped the modern, intelligent “way to go” and the benefits are plain to see.
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