Alternative Dispute Resolution.docx - Alternative Dispute...

Alternative Dispute Resolution:
17.01 Introduction:
 What is ADR?
 Why ADR?
 Statutory v Private ADR:
o Statutory:
 Certain statutes provide for compulsory mediation and arbitration e.g.
Labour Relations Act
o Private:
 B/t parties themselves
 Institutional v ad hoc ADR:
o Institutional:
 Certain institutions promote mediation and arbitration by providing
mediators, arbitrators and facilities e.g. Association of Arbitrators
 Conducted under the rules of the specific organisation
o Ad hoc:
 Takes place under rules agreed upon b/t disputants for purposes of
the particular process.
17.08 Mediation:
 Not appropriate for resolution of all types of disputes
 Appropriate if one or more of following indicators are present:
o Parties are committed to achieve an amicable & negotiated settlement
o Parties want to continue with their relationship after resolution of dispute
o no clear-cut legal principles are guiding the resolution of the dispute
o dispute is of a less serious nature and parties are in a relatively equal
bargaining relationship
 Definition of mediation:
o Private mediation = voluntary procedure where a neutral 3 rd party tries to
persuade the parties in dispute to come to an agreed solution

o (mediator doesn’t have authority to make a final award if parties aren’t
able to settle dispute through an agreement)
 Agreement to mediate:
o B/c it’s a voluntary procedure – parties must expressly agree to subject their
dispute to mediation
o Agreement may be made orally or in writing (general principles for formation
of a valid contract apply)
o mere offer by one party to subject their dispute to mediation = not binding
before acceptance thereof by the opposing party
 Advantages and disadvantages of mediation:
o Advantages:
 Informal
 Less expensive
 Speedier process
 Preferable for a dispute to be settled by mutual agreement
 its confidential in nature – takes place w/o prejudicing existing rights
 doesn’t result in final decision i.e. ongoing mediation, arbitration or
litigation is still possible
o Disadvantages:
 Process is dependent on co-operation of parties
 A party may agree to solution b/f all relevant facts have come to light
or have been examined
 There’s a perception that the party who proposes mediation shows a
lack of confidence in his/her case
 Forms of mediation:
o Mediator provides recommendation on finalising of the dispute after
completion of the procedure
o