The Overlooked Middle Child of ADR

When it comes to resolving legal disputes, certain mechanisms often steal the spotlight. but what about the quite achievers?? This blog post examines Alternative Dispute Resolution (ADR), outlining the different mechanisms of ADR, the law that governs and the types of cases they are most appropriate. From there, it takes a closer look at the overlooked middle-child of ADR, Conciliation. 

The Umbrella Term

This refers to any method of resolving disputes outside the traditional court system, including mediation, arbitration, conciliation, and negotiation. ADR was established by the South African Law Reform Commission in 1997 to help people gain better access to justice without the burden of conventional court procedures. Unlike traditional litigation, ADR does not involve courts where a judge must hear a case and decide based on the information presented. Instead, voluntariness is a key principle in ADR. Individuals participating in ADR mechanisms must willingly agree to cooperate in the process.

There is a Tswana saying that reflects the principle of resolving matters privately before taking them to the public and it is often expressed as "Molato ke kgwedi o o sa lelelweng". This translates to "A case is like the moon; it should not be exposed prematurely." It emphasizes the importance of addressing disputes within the family or community first, fostering harmony and avoiding unnecessary public scrutiny. This proverb underscores the value of discretion and communal problem-solving.

The Law That governs 

• Mediation, governed by the Mediation Rules of the High Court of SA. 
• Middle Child,  often used in labor disputes is governed by the Labour Relations Act 66 of 1995. The Commission for Conciliation, Mediation, and Arbitration (CCMA) plays a significant role in facilitating these processes. 
• Negotiation, not strictly governed by specific legislation, is guided by principles of contract law and agreements between the parties involved.
• Arbitration is governed by the Arbitration Act 42 of 1965. 

These mechanisms are said to be efficient and effective alternatives to traditional litigation.

MECHANICS

1. Mediation 

This guy over here, the thief of spotlight! this is where all the attention is, Mediation. This involves a neutral third party (the mediator) who facilitates discussions between disputing parties to help them reach a voluntary settlement. Mediation is the most practiced ADR mechanism in South Africa, particularly since Rule 41A of the Uniform Rules of Court came into effect on March 9, 2020. This mechanism is best suited for cases requiring confidentiality and preservation of relationships, such as family disputes or workplace conflicts.

2. Arbitration 

Arbitration is a formal process where a neutral arbitrator hears both sides and makes a binding decision. Arbitration is known for the ability to combat Commercial disputes or cases that require a legally enforceable resolution, and this is often done through services of the CCMA. This mechanism is most suited for cases such as cases concerning breach of contract, sale of goods, construction or engineering disputes. 

 

3. MIDDLE CHILD 

Conciliation involves a neutral conciliator who assists parties in resolving disputes by improving communication and offering recommendations. The conciliator actively proposes settlement terms, lowering tensions, interpreting issues, and helping parties reach a mutually acceptable outcome. Conciliation is best suited for cases requiring structured guidance but preferring a less formal approach than arbitration, such as labour disputes. This is particularly evident in the role of the CCMA.

4. Negotiation 

This one is quite easy and simple, it is an informal process where parties directly communicate to reach a mutually acceptable agreement and it is often used in situations where parties are willing to collaborate without third-party intervention, what is unique about it is that it can be used for all types of disputes but this is not entirely correct. This mechnism emphasises the need for harmony in dispute resolution.  

How Conciliation is Better than Other Mechanics

Conciliation stands out among ADR mechanisms due to its proactive approach. 

A conciliator actively proposes settlement terms and guides the negotiation process. This interventionist role allows the conciliator to help parties prioritize objectives and identify areas of flexibility.In comparison to arbitration and mediation, conciliation offers a structured yet flexible approach. Its focus on improving communication and lowering tensions is particularly beneficial in complex or high-stakes disputes. This proactive role in solution-finding by the conciliator makes conciliation unique within ADR.

What also stems form this proactive role that conciliation plays is that the conciliator can propose solutions and even recommend settlement terms. 

What is more, the conciliator often guides the parties toward a compromise, using legal knowledge or experience to steer the discussion. This is as a result of that, conciliators are often experts 

However, POWER IMbaLanCes poses a serious challenge. In disputes with unequal power, such as employer-employee conflicts, the weaker party may feel pressured to agree to terms that are not in their best interest, especially if they lack legal representation. This underscores the need for safeguards to ensure fairness and equity in conciliation processes.

This is to say...the Middle-Child, like any other middle child holds untapped potential in South African ADR. Essentially it becomes unique because the conciliator actively proposes solutions, aims to restore relationships, and operations in a non-biniding, flexible process; this makes it most suitable for labor and employment contexts. So by emphasizing its advantages and integrating it more prominently into dispute resolution frameworks, this should enable us to unlock its full potential to provide accessible and effective justice.