Dispute resolution is the process followed to resolve a dispute between two or more parties. Choosing the best process for a given situation requires careful consideration. In many cases, disputants are often confused about which process to apply to their situation, or don’t know their options – choosing between mediation, litigation and arbitration can be daunting. Which is exactly why we are here and why we are writing this series.
Arguably the most common type of dispute resolution, litigation involves taking a legal dispute to Court. Like many countries, South Africa employs an adversarial legal system which allows both the plaintiff and defendant to argue their case before a judge. The judge hears both sides, impartially, and will make decisions based on evidence presented by both parties.
This can be done without an attorney, but the process is technical and complex, and having legal assistance is the best way to ensure a positive outcome in your case.
Arbitration is a hybrid of litigation, which makes use of an adversarial approach to dispute resolution. Instead of a court-appointed judge, the arbitrator is an independent person, not employed by the State, such as a senior advocate or attorney, or expert in the matters being disputed selected by the parties involved.
Arbitration is quite often stipulated in commercial contracts as the dispute resolution method, in which case, the parties to the contract are bound to make use of it, unless they subsequently agree otherwise. The wording of the contract will be key in planning the approach. For example, who will act as arbitrator could be mutually agreed upon by the parties, or an independent third party could nominate the arbitrator. The president of the local Law Society is often called upon to nominate.
Although not always well understood in South Africa, mediation is a powerful form of dispute resolution, and does not exclude also making use of litigation as part of a strategy. A form of assisted negotiations, mediation involves a trained, neutral third party mediator facilitating a process that attempts to reframe the dispute in such a way that parties can find an acceptable outcome. Once a solution is agreed, it can be made an order of court to give it more teeth.
Mediation is currently voluntary, but (like arbitration) can be stipulated in a contract. The process is confidential and without prejudice to any rights of the parties. The process is also relatively speedy and cost-effective.
Dispute resolution requires a combination of legal skill, relevant experience, resources and determination. Step 1 is choosing the right strategy. The Gunstons dispute resolution attorneys are committed to ensuring that you get the best advice, support and guidance while using all available options. This is part of putting you, the client, first.
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