Mediation & Arbitration
Mediation and arbitration are alternative methods of dispute resolution, by which disputing parties can avoid having to resort to litigation via the courts.
We will act as your primary point of contact for mediation or arbitration-related matters but will work closely with one of our specialist, associate firms, which will be able to assist you.
Please see below for a brief overview of the advantages and disadvantages of the two processes.
This process involves the appointment of an independent, third party (the "mediator") who presides over a dispute in an attempt to help the parties reach agreement on certain issues and to compromise on others. The mediator would usually be an active participant in the mediation process. Following the conclusion of the mediation process, any proposals and recommendations of the mediator would typically not be binding on the parties.
Although the mediation process can be costly, if successful it can result in a far speedier resolution to the dispute.
Mediation has become very common in recent times when trying to resolve:--
This process involves the appointment of an independent, third party (the "arbitrator") who presides over a dispute much like a judge, but in an out-of-court and less formal setting. The arbitrator would usually be a retired judge or an experienced attorney who is not an active participant in the arbitration process. Where the dispute involves a technical matter, it is usually a good idea for the parties to appoint an arbitrator who is experienced in the field to which the arbitration relates.
Commercial contracts in South Africa usually include an arbitration clause which specifies how, in the event of a dispute, arbitration is to take place. Where this is not the case, the disputing parties would need to agree to have a dispute arbitrated, and an arbitration agreement would then be signed which sets out the pre-agreed arbitration rules (the arbitration may also be conducted in accordance with the requirements and rules of South Africa's Arbitration Act 1965, as amended). Alternatively, if the Arbitration Foundation of South Africa ("AFSA") is used, the AFSA's rules would normally be applied to the arbitration.
Following the conclusion of arbitration, any decision of the arbitrator would be binding on the parties. In addition, the successful party may also approach the courts in order to have the arbitration award made an order of court, in which case the arbitration award would then be enforced in the same way as any court judgement.
Like the mediation process, the arbitration process can be costly. However, arbitration offers the disputing parties the following benefits:-- (a) the disputing parties can appoint a specialist arbitrator for disputes of a technical nature; (b) the dispute can be arbitrated in a far speedier manner than waiting for a trial date in the courts (by way of comparison, it will typically take around 12 to 18 months (or longer) for a matter to be heard in the relevant High Court having jurisdiction over the matter concerned); (c) the arbitration papers and award are private and confidential and do not become a matter of public record, unlike court pleading and court orders which would be; (d) the parties may mutually agree upon a more flexible arbitration procedure than the court process would have permitted; and (e) arbitration offers finality to the dispute, unlike litigation via the courts where appeals are common and are often granted.
Arbitration has become very common in recent times when trying to resolve a variety of disputes, many of which would historically only have been decided upon following litigation.