Should You Consider Alternative Dispute Resolution?
Understanding the purpose, application, and method of alternative dispute resolution is important whether you are an employer or someone who has contracted a team of construction workers to complete a project. It is just as important as an employee or sub-contractor to understand how alternative dispute resolution can help you to get money owed or to solve a dispute with an employer.
We thus briefly explain how alternative dispute resolution works below, helping you to understand how our legal team can be of assistance.
What Is Alternative Dispute Resolution?
It is a legal method for resolving a dispute between parties without them having to go to court for a ruling on the matter. The term covers various methods that qualify as alternative dispute resolution mechanisms, including negotiation, arbitration, and mediation. The mechanism is based on voluntary participation by the parties involved. This also means that the parties involved cooperate to get to a workable solution or outcome regarding their dispute.
Why Opt for Alternative Dispute Resolution?
It is an affordable approach for reaching an agreement. Instead of parties having to go through lengthy and often hostile court proceedings, which can also be rather expensive, the parties can reach a solution together. It is thus also a less stressful method for solving a dispute. The parties are encouraged to cooperate. In addition, a neutral party presides over the proceedings to ensure objectivity and fairness. The goal is to resolve the issue at hand with a solution that is acceptable to all parties involved.
The parties involved can choose which procedures to follow as an alternative to litigation. One such method is conciliation. Each type of procedure is discussed and the one agreed upon is followed. We briefly look at some of the alternative dispute resolution procedures below, helping you to decide which one is best for your particular situation.
Negotiation
This is the most affordable approach. The parties involved communicate their issues and attempt to come to an agreement. If it is not possible to do so without the assistance of a neutral third party, they can opt to have a mediator present that can oversee the communication in order to come to an agreeable solution.
Mediation
This brings us to the second procedure. If negotiations without a third party fail, a mediator is called in to help the parties come to an agreeable solution. Keep in mind that the mediator does not have a legal say on the outcome of the dispute. Instead, the person steps in to help the parties communicate, understand the issues, and find a solution. It is also not binding and the mediator does not decide the outcome of the negotiations. It is an affordable approach if the parties are hostile and need an objective party to present their issues to each other. It is also a suitable approach where family members are involved or where two business partners want to find a solution without litigation.
Arbitration
If negotiation and mediation fail, the next step is arbitration. The parties appoint an arbitrator based on skill, experience, and legal expertise. The arbitrator listens to the various parties involved and awards a decision. It is possible to have a binding decision by the arbitrator if the parties agree to this beforehand.
Benefits Associated with Alternative Dispute Resolution
Whether negotiation, mediation, or arbitration, the proceedings are usually informal or at least less formal than court proceedings. The focus can be on the issues at hand, rather than the correct court proceedings to follow. With it being a voluntary process, the parties normally actively seek a workable solution. The parties involved in the dispute also have more control over the way the issues are addressed than with court proceedings.
An important part of the process is that of communication. Communication that is aimed at understanding, agreeing, and working towards a solution. With litigation, parties can sometimes be hostile and just work towards their own interest. The costs involved in litigation are often too high for smaller businesses, employers, and the average employees. With negotiation, mediation, and arbitration, even small building contractors can communicate and work out their issues with a large commissioning company in order to come to an understanding.
Call us on 011 234 2125 for alternative dispute resolution assistance in South Africa.
Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – January 2019.
