ADR involves the resolution of disputes/conflict in an alternative manner to going to court (which operates on a winner-takes-all approach) for such resolution. In recent years, ADR has been promoted as the preferred manner of dispute resolution (over litigation) in most countries, including in the Republic of South Africa. Moreover, commercial agreements making provision for ADR in one form of another have become commonplace. ADR has numerous benefits, which include amongst others the advantage of choosing one’s own “judge”, a speedy resolution, the saving of costs (inter-alia, by excluding costly appeals) and confidentiality.

This is the simplest way of resolving a dispute. In this instance, the parties enter into negotiations and settle their dispute without the assistance of a third party. The advantages include the fact that it is convenient, relatively cheap and often preserves the relationship  between the parties (who might be ex-spouses, with minor children). Although settlement might be promoted by the fact that the parties are in a good position to appreciate the strengths and weaknesses of their own cases, settlement is often scuttled by an over optimistic view of their own cases, bad blood, suspicion and a desire to save face.

In order to promote settlement, the parties might be compelled to exhaust a process of mediation (either contractually or procedurally in terms of the rules of court) or they may simply agree to do so by reason of the clear benefits of such approach. For this purpose an independent mediator (who is ideally suitably trained) is appointed to facilitate resolving the dispute between the parties. Depending upon the form of mediation agreed upon, the mediator would either be entitled to or precluded from expressing any (non-binding) view in respect of the merits of each party’s contention(s). Should the dispute be settled, the parties enter into a binding written agreement setting out the basis upon which the dispute was resolved. On the other hand, in the event of the parties failing to settle the dispute, it remains open to the aggrieved party to seek a resolution by way of adjudication, arbitration or litigation.

In South Africa, as is the case in many other countries, adjudication is commonly provided for predominantly in standard construction and mining contracts. The adjudicator is an independent person, who is appointed in accordance with the provisions of the contract requiring such adjudication. The award of the adjudicator must be implemented immediately, even in the event of the dispute becoming the subject matter of subsequent arbitration or court proceedings in which such award might be set aside.

Arbitration proceedings are in their nature akin to court proceedings. The conclusion of a written arbitration agreement between the parties is a precondition for arbitration. The fact that the parties are able to appoint an arbitrator of their choice, with specialised knowledge and experience, is one of the main advantages of arbitration. Arbitration is governed by statute in South Africa.