Why Alternative Dispute Resolution is Appropriate in South Africa

Long before South Africa’s miraculous negotiated change from pariah state to new age democracy, the country, and the continent at large, has been practicing alternative dispute resolution - arbitration, mediation and conciliation - as part and parcel of ancient African tradition.

Traditional methods, embodied by countless tribes and communities, emphasise the amicable resolution of conflict through debate, discussion and discourse between elders, traditional healers and the involved parties.

ADR part of South African Customary Law

Prior to the introduction of ‘modern’ Roman-Dutch Law by the colonial powers, South Africa had a strong, structured customary legal system that typically relied on mediation and conciliation. With the birth of the new South Africa, the fundamentals of African customary law have been interwoven into the hybrid legal system which is now South Africa’s.

Apart from continuing and exploiting our proud tradition of overcoming obstacles without resorting to violence or conflict - and the undisputed fact that ADR costs a lot less than court litigation - the significant high court backlogs demand an alternative means of dealing with civil cases.

Court Backlogs

In 2009, over 3000 civil matters were outstanding, with the next available court dates only being pencilled in three years later - in 2012! Aside from the obvious prejudice of litigants, a proposed R30 m budget has been set aside to build and man additional ‘backlog’ courts, a cost that could be best served in the delivery of much needed essential services.

Cape Town Law Firm offers Specialist Arbitration and ADR

Arbitration and ADR is now firmly positioned amongst the myriad services offered by specialist Cape Town lawyers, and law firms throughout the country. Associates and professional assistants are specifically trained to deal with the nuances of ADR, gaining invaluable experience during the mediation and arbitration process which is passed on to clients.

What is ADR?

ADR is generally divided into two distinct categories; methods of resolving conflict outside of the judiciary – mediation, ombudsmen and informal tribunals - and informal conciliatory techniques attached to official judicial instruments.

Although there are different methods, ADR is resolutely concerned with only one outcome, that of conflict resolution.

Popular forms of ADR in South Africa:

• Negotiation – is a voluntary process between the parties that takes place without the services of an independent, third party facilitator.
• Mediation – is overseen by a third party mediator who facilitates the process and may suggest a resolution, but does not impose it.
• Collaborative Family Law or Collaborative Divorce – is when specially trained attorneys are appointed to facilitate the process within specifically contracted terms, where the parties reach an agreement with the support of their attorneys. Although no one imposes the resolution, the process is a formal one which is part of litigation and the court system.
• Arbitration – is a voluntary method where a third party, such as a judge, imposes a resolution.

How to Explore the Benefits of ADR

You can find out more about the typical techniques associated with ADR by consulting specialist Cape Town lawyers, De Vries, Shields and Chiat. Apart from personal injury and medical malpractice expertise, banking law, corporate and commercial law and countless other legal services, the DSC Law Firm offers expert arbitration and ADR.