LEARNING MORE ABOUT ALTERNATIVE DISPUTE RESOLUTION WITH DE ABREU AND COHEN INC.
By Christie-lee Britz and Rieyaaz Narodien
During the month of January 2021, De Abreu and Cohen Inc. will be focussing on various Alternative Dispute Resolution methods as a means to resolve disputes in an effective and efficient manner. There are many methods of resolving disputes outside of traditional court based litigation. These methods are often more informal, efficient and can be more affordable. Alternative Dispute Resolution methods include Negotiation, Mediation, Arbitration and Conciliation.
Negotiation is a voluntary process presented in an informal setting. There is no third party involved in the negotiation process. Instead, parties present their own evidence and arguments. The aim of negotiation is that the parties reach an agreement that is mutually acceptable. It is advisable that the parties reduce the terms of their settlement agreement to writing. This process focuses on strengthening the relationship between the parties. A negotiated agreement can only be enforced through the use of any enforcement procedures contemplated in the agreement, alternatively if there are none by approaching the court.
Mediation is usually embarked upon voluntary although it can be statutorily required or required in terms of an agreement. This method of dispute resolution is similar to the negotiation process referred to earlier, in that it is held in a private setting and on an informal basis. Mediation differs from the negotiation process, in that an independent third party regulates the mediation process and will attempt to assist the parties in reaching a settlement.
Arbitration can be required by contract, however, many parties choose to arbitrate, in order to utilise the benefits of the arbitration process when they find themselves in a dispute. Arbitration is beneficial as there is potentially less case management in the early stages of proceedings and potentially greater flexibility in arranging hearing dates which are convenient to the parties. An arbitration award is binding in nature despite the fact that a court is not involved. Depending on the subject matter of the dispute, a specialised third party will act as the Arbitrator.
Conciliation may be defined as an inclusive method of Alternative Dispute Resolution, wherein parties commit to use a Conciliator who meets with both parties as a means to resolve their dispute. The aim of Conciliation is to lower tensions between the parties and to assist them in mediating the contentions that have led to the conflict. This is done with a view of reaching a solution which is both amicable and beneficial to the parties.
Should you require assistance in resolving any dispute, kindly contact Marie-Lou Gillespie on mlgillespie@dacct.co.za. We look forward to being of assistance to you.
*Christie-Lee and Rieyaaz are first year candidate legal practitioners at the firm’s Cape Town office.