Alternative dispute resolution (“ADR”) processes are cheaper, more efficient, less stressful and more interactive than traditional civil litigation. Its flexible and informal processes make ADR an attractive alternative. The degree to which parties / opposite sides can be part of the decision making is higher than civil litigation as ADR is geared toward interactive decision making and being solution-based thereby attempting to facilitate both parties’ interests as much and as far as possible. The common characteristic of ADR is the impartial and neutral third party who facilitates the process in order to reach a decision and conclusion.
There are various “hybrid” style alternative dispute resolution procedures available. Often situations or disputes in the workplace are unique and cannot always be blanketed or categorized in specific boxes and thus require a more nuanced and combined approach. Some of the following procedures are discussed below:
- Firstly, mini-trial – this process involves an impartial neutral third-party who chairs the mini-trial. Similar to an actual trial, the processes and procedural aspects of the mini-trial are decided before the mini-trial starts in order to save time and increase expedience. The chair is usually an expert on the specific field/area in question (legal, accounting, etc.) where both sides are able to present their respective cases and reasons in a formal trial-like setting. In this process, the parties are able to bring witnesses and expert witnesses to assist and strengthen their respective cases. Similar to a trial, the chair is able to question and gain clarity from such witnesses or experts providing opinions and evidence;
- Secondly, the med-arb procedure – this process involves mediation which then progresses and concludes in arbitration. The decision in the latter instance is binding and final. As the name suggests, the parties will agree to mediation and should it not reach finality and a conclusion / is not successful, the parties will progress the matter to arbitration;
- Thirdly, a process known as mediation followed by recommendation – this involves a mediator who provides his or her recommendation to the parties to resolve the dispute and involves the parties attempting to reach their own conclusions with the guidance of the mediator. The process is less formal and stringent than for instance a mini-trial as the parties are free to reject the recommendation of the mediator. Such recommendation is suggested / made if the parties cannot reach their own conclusion or resolution on their respective dispute; and
- Mediation and last offer arbitration (commonly known as “MEDALOA”) – this is where the parties agree that, should the mediation not be successful, they submit their final offers to the arbitrator. The negotiation process is important as not merely ticking a procedural box, but to make genuine efforts to reach resolutions and conclusions before submitting to the arbitrator.
As mentioned, the disputes which arise in these areas are often complex in nature and may involve a joined series of processes which are understood and highlighted before they commence. This is once again an attempt to reduce expenses and time-wasting efforts and to narrow down certain issues before the actual process commences.
Though ADR procedures are attractive for these reasons, there may be instances where parties are intentionally uncooperative and refuse to engage meaningfully in resolution-seeking processes. In such cases, the courts may be the best and most appropriate body for relief while the costs and time may be higher / longer.
If you need any assistance, do not hesitate to contact us to assist you.
Faure Swanepoel
faure@bbplaw.attorney
Candidate Attorney
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