Alternative Dispute Resolution
Alternative Dispute Resolution is a cost-effective alternative to court litigation
Alternative Dispute Resolution (ADR) consists of various private processes of resolving legal disputes and represents an alternative to the traditional court litigation process. ADR therefore includes arbitration, mediation, adjudication, valuation, certification and expert determination.
These processes are not linked to formal court process. Parties to ADR can agree for arbitration or mediation outcomes to be elevated to a court order should this be required. The parties are not precluded from approaching a Court during the course of ADR should the need arise.
Benefits of ADR
Generally the benefit of the process is that the parties get to choose the person who will facilitate the process. They can agree on the rules to be utilised for governing the process, thereby speeding it up and ensuring that an outcome usually be reached at lesser cost.
These proceedings are not open to the public and are therefore private and confidential.
As these proceedings are regulated by agreement between the parties they are flexible and user friendly.
Methods of alternative dispute resolution
The mediator helps parties to discuss their disputes in a controlled environment to find mutually agreed solutions. He may suggest solutions which the parties may consider or discard at will. The disputes usually involve legal issues, but the mediator does not decide the outcome. It is a voluntary procedure and all discussions are without prejudice and off the record and cannot be utilised in other future proceedings.
The arbitrator hears the parties versions in a dispute by way of documents only or a combination of documents supplemented by evidence. The parties will decide what procedure they require. This process could be similar to court procedure but it’s less formal, more flexible and therefore usually more quickly resolved. There are also specials rules for shortening the procedure which is better suited to smaller claims.
Of the various processes of ADR, arbitration is the more formal and sophisticated system akin to formal court litigation albeit in a private capacity with its own rules and flexibility. This generally facilitates quicker and cheaper finalisation of disputes which are often of a contractual nature.
This is a quicker process normally associated with construction disputes where a neutral 3rd party determines a dispute as an expert. He may meet with the parties independently for this purpose.
Goldberg & De Villiers and ADR
To resolve disputes by way of ADR it is preferable to employ the services of someone with experience and knowledge of these processes. Herman Bekker has been a partner at Goldberg de Villiers for more than 30 years and during that period had specialised in litigation. He is also a Fellow of the Association of Arbitrators (SA) NPC. As a result of conducting litigation over many years he has been working at the coalface so to speak, and has both the experience and qualifications to facilitate and preside in administering the processes of ADR. He has also obtained a certificate for administering mediation proceedings.