ALTERNATIVE DISPUTE
RESOLUTION
COST-EFFECTIVE. SPEEDY. ENGAGED.
Alternative Dispute Resolution will in many cases allow for a creative, personalised outcome which is not available in litigation, making ADR a more cost-effective, speedy solution to complex matters.
Our expertise in corporate and commercial matters coupled with an experienced team of dispute resolution specialists ensures that we provide solutions that are most advantageous to our clients.
Traditional forms for ADR include:
Negotiation
Negotiation is a discussion where parties engage with each other with the aim of achieving a compromise and reaching an agreement. Negotiation does not typically involve any go-between / mediator and is as informal and open-ended as parties wish to make it.
Mediation
Mediation involves an independent, qualified third party, ‘the mediator’, listening to each side’s version of events, examining the dispute and assisting the parties in finding a solution and reaching a mutual agreement. Agreements are usually non-binding and without prejudice, so parties may subsequently choose to pursue litigation but what a party says in a mediation cannot later be used in court proceedings. As a cost saving, parties can share the cost of the mediator or consider Fixed Fee Mediation.
Mediation allows for a speedy, cost-effective, creative resolution in ways that a court cannot.
Arbitration
Unlike mediation, arbitration results in a ‘decision’ which can be made an ‘order of court’ by agreement between the parties. Here, parties are usually represented by legal practitioners as arbitration proceedings are closer to an actual court hearing than mediation. Often the arbitrator will be a retired judge or senior legal practitioner, and so it is recommended that each party have an experienced legal practitioner present for the arbitrator to make a ‘decision’.
Arbitration is still an adversarial process as the arbitrator will find in favour of one party, with a cost order to follow, so parties should agree from the outset how costs will be dealt with or whether this will be left in the discretion of the arbitrator. Time is a major advantage of arbitration as parties are not restricted by the court’s timelines and thus an arbitrator can resolve a matter in weeks or months rather than years.
Adjudication
This is an accelerated and cost-effective tool as the outcome, a decision by an adjudicator, is binding on the parties unless reviewed by either arbitration or litigation.
An adjudicator reviews evidence from both sides to reach a decision which determines each party’s rights and obligations, provides certainty as to each party’s position, and permits the parties to get on with business.
In adjudication, the parties do not necessarily need to be present, as an adjudicator may request written submissions and clarifications from both sides before reaching a decision. This keeps costs down and prevents issues from multiplying into procedural arguments and delays.
Meet dispute resolution specialist, PJ Veldhuizen:
PJ Veldhuizen is an accredited commercial arbitrator with the Arbitration Foundation of South Africa (“AFSA”) and an accredited mediator through Conflict Dynamics. PJ is internationally accredited as a mediator by the Centre for Effective Dispute Resolution (“CEDR-London”). He also holds certification in advanced mediation of complex disputes from Harvard Law School.
