ADR could be used far more widely to improve access to justice in South Africa. Picture: Oupa Mokoena.
South Africa’s constitution promises justice for all, but as we know, in practice, pursuing justice through the courts is a course of action open only to the rich and powerful. Unless a civic organisation can provide support in a dispute against a big financial firm, for example, which may employ an army of well-paid lawyers, the litigation route is rarely an option for a citizen of moderate means.
But there are other routes you can take. Alternative dispute resolution (ADR) is a term that encompasses the various alternative procedures that have standing within our legal system. These include access to ombudsmen, particularly in disputes involving financial services, and the mechanisms of conciliation, mediation and arbitration, particularly for workplace disputes.
In financial services, there are statutory and industry ombuds with whom you can lay a complaint. The ombud’s office will then request a response from the party to whom the complaint is directed. Weighing up the arguments, the ombud will either dismiss the complaint or propose a settlement. If the settlement terms are rejected by the financial services provider, the ombud may order compensation for the complainant. In the case of the statutory ombuds (for financial advice and pensions), this order takes the form of a legally binding determination. In the case of the industry-body ombuds (for banking and insurance), the ombud issues a recommendation that the member organisation is obliged to follow.
Conciliation, mediation and arbitration involve a third party who acts as a middle man in resolving the dispute between the two parties.
Mediation is the mildest and most informal of the three mechanisms. The mediator impartially assists the parties to reach an amicable agreement. The mediator does not comment on what is right or wrong, fair or unfair. The parties decide whether they wish to settle the dispute and on what terms. Once the agreement has been reached, it is legally binding.
Conciliation is similar to mediation, except that the third party, the conciliator, is more involved in attempting to bring the parties to an agreement. As with mediation, the process is private and confidential, off the record and “without prejudice”, meaning that nothing the parties say can be held against them in another process.
Arbitration is the most formal of the three mechanisms and most similar to a court procedure. This is a formal hearing during which the parties to a dispute will lead evidence and present arguments to the arbitrator. The arbitrator will consider the evidence and arguments and make a finding in the form of an arbitration award, which is binding. In other words, unlike conciliation, where it is the parties that decide on how they will resolve the dispute, arbitration gives those powers to the arbitrator.
The Commission for Conciliation, Mediation and Arbitration (CCMA) is an independent statutory body established in 1996 under the Labour Relations Act. It acts to resolve workplace disputes through conciliation and, if that fails, through arbitration. Since its inception, the CCMA has enjoyed a national settlement rate of more than 70%. It has dealt with nearly four million cases since its inception, of which about 184 000 were referred in the 2022/23 financial year. Unfair dismissal accounted for 54% of referrals in 2022/23, with the most referrals coming from the security sector.
In a recent article, “Alternative dispute resolution: ensuring equal access to justice in a changing legal landscape”, Vlad Movshovich, partner, and Kanyiso Kezile, candidate attorney at Webber Wentzel argue that ADR could be used far more widely to improve access to justice in South Africa for socially and economically disadvantaged groups.
“The impacts of unequal access to justice in the changing legal landscape are felt most acutely by the economically disadvantaged and the socially and commercially marginalised. These citizens may have limited ability to seek legal aid, successfully participate in the legal system through access to courts, tribunals, and alternative conflict resolution, and effectively participate in law-related processes.
“Courts are extremely bureaucratic. The procedures and paperwork are complex and incomprehensible to a layman. ADR, a mechanism where parties have control over what happens, is a good mechanism to ensure effectiveness and transparency in the proceedings. Publicly-financed dispute resolution centres (apart from the CCMA) should be considered to make ADR more accessible,” Movshovich and Kezile say. This could be particularly useful in matters relating to family law, consumer law, employment law, land restitution and property law.
“Studies have shown that the adversarial system is not always the best setting for settling disputes in a way that will promote collaboration, co-operation and compliance among parties who will often continue their relationship afterwards,” Movshovich and Kezile said.
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