Alternative Dispute Resolution and Facilitative Processes

dispute resolution

The civil litigation procedures in South Africa can be costly. Given the nature of the legal system having numerous drawn out and postponed court appearances, alternative dispute resolution procedures are therefore welcomed. One such alternative is alternative dispute resolution (also informally known as “ADR”) which was established in 1997 by the South African Law Reform Commission. The idea was to further the right to access to justice of parties involved in civil matters and that ADR mechanisms would be integrated into civil procedures over time.

ADR assists in the access to justice and helps streamline matters in the following ways:

  • It saves costs – mediation and negotiation which forms part of ADR is cheaper than arbitration. The arbitration process is usually also cheaper than litigation;
  • ADR decreases the backlog at court – as mentioned above, courts are often overflowing with matters increasing time and expenses expended to see matters resolved. The use of ADR aids in this respect, especially regarding matrimonial disputes where mediation is involved;
  • ADR is often easier to navigate – The ADR procedure and processes are usually agreed upon between the parties which makes the process easier to understand and less formal; and
  • ADR involves cooperation and participation – disputes can be settled through parties participating in active solution-seeking consultation with an impartial third party which can be less formal and stress-inducing than formal court procedures.

The procedures involved in the facilitative processes of ADR include firstly, negotiation, which has the aim of reaching a mutually beneficial settlement between parties. Though this process is supposed to be cost-effective and speedy, a settlement is not guaranteed. The use of a third party, as impartially mediating the opposing sides, is not found in this negotiation stage, the opposing sides are thus required to come up with their own solutions to their disputes often requiring good negotiation skills.

Secondly, mediation is where a neutral third party assists the two sides to reach a settlement and agreeable position. In this instance, the parties decide how they want to resolve their disputes and not the mediator.

Thirdly, conciliation as part of the facilitative process is when a neutral and impartial third party provides his or her opinion on the solution. The parties to the dispute are not bound to his or her decision.

In an effort to save time and money, you may want to consider an ADR measure. If you need any assistance, do not hesitate to contact us.


Faure Swanepoel
Candidate Attorney


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