Specialisations

Alternative dispute resolution is becoming the norm in Africa. There are considerable benefits to ADR. The parties are more in control of the process, pace and oversight of a dispute. Moreover, parties have considerable power to appoint specialized persons to oversee a mediation, arbitration or facilitation.

Arbitration

Arbitration is a process in which a dispute is submitted—by agreement between the parties—to one or more arbitrators, who then make a binding decision on the matter. It is fundamentally based on the consent of the parties involved, typically through an arbitration agreement.

In Africa, arbitration is generally regulated by legislation, covering both domestic and international arbitration. In addition to ad hoc arbitration, there are specialized bodies that can administer the process. These include the Association of Arbitrators (AoA) and the Arbitration Foundation of South Africa (AFSA). For more information, see: https://arbitration.co.za.

Samantha serves on AFSA’s commercial panel of arbitrators and played a key role in establishing Young AFSA.

Although arbitration can be more costly upfront, it often saves parties significant time in the long run. It is also typically more private than court proceedings, which are open to both the public and the media.

In the context of sport, arbitration is a common mechanism for resolving disputes—particularly between players and clubs, as well as between clubs and federations or governing bodies.

Mediation

Mediation is described it is a process by which a mediator assists the parties in a legal dispute by:

  • facilitating discussions between the parties.
  • assisting them in identifying issues.
  • exploring areas of compromise.
  • generating options in an attempt to resolve the dispute.

There is now Court mandated mediation in South Africa. The Court-Annexed Mediation Rules which will be implemented in the District and Regional Courts form part of Government’s effort to transform the civil justice and enhance access to justice. There is now also a specialized Rule 41A overseeing mediations in the High Court as well as. Protocol which deals with civil trials. It is imperative to understand these directives. Only accredited mediators can oversee mediations, and AFSA is accredited. Mediation is exponentially less costly than litigation. It also preserves relationships.

Facilitation

Facilitation is described as the act of helping other people to deal with a process or reach an agreement or solution without getting directly involved in the process, discussion. Facilitation requires an artfulness and a high emotional intelligence to read the room and to help the parties navigate issues in a calm manner.