Arbitration

Traditionally only building and engineering disputes were referred to arbitration for resolution; the reason being that the highly technical nature of construction dictated that a specialist determine the dispute.

However, with the congestion in our courts and the consequent delay in matters coming to trial (plus minus 3 years) commercial arbitration is becoming the increasingly favoured method of dispute resolution.

Today virtually all commercial contracts contain a clause that provides that all disputes be referred to arbitration for resolution.

The important features of arbitration are:

1.            The parties can choose the arbitrator e.g. if the dispute involves primarily an accounting issue, a chartered accountant can be appointed as the arbitrator.

2.            Arbitration provides the mechanism for a speedy resolution where commercial practicality so requires.  An arbitration can be convened and arranged on short notice where an expedited process is followed and the dispute determined within 7 to 14 days.  However, where the dispute is complex, a more formal procedure can be agreed upon.  Irrespective of whether the parties follow an expedited procedure or a longer more formal process, the dispute will inevitably be finalized within no more than three months.

3.            The parties can also agree that certain aspects of the dispute be dealt with by the arbitrator and the parties themselves without legal representation, with the attorneys and advocates only addressing legal argument once the factual aspects have been determined.  This obviously saves legal costs and the dispute is often resolved in the first part of the process. 

4.            Arbitration awards (the judgment) can be subject to appeal, or not (as agreed upfront by the parties) and can also be made an order of court, so as to be enforced.

Arbitrations can be conducted in terms of the Arbitration Act or the Rules of Association of Arbitrators or upon the terms and conditions as agreed to by the parties and recorded in the contract.

Arbitration is without doubt a preferable means of resolving disputes as opposed to litigating through the courts.  It is speedy, cost effective and the parties have the comfort of knowing that the person determining the dispute is a most qualified and appropriate person.

Mediation

Mediation is distinguished from arbitration as instead of an arbitrator deciding the dispute, in mediation, it is the parties who must reach consensus.

Mediation plays an important role where a decision given by a third party in favour of either party can destroy the relationship.  Mediation therefore assists where the dispute involves personal relationships between the parties e.g.  employer / employee or husband and wife and / or in an ongoing supply of goods or services.

Divorce Mediation

Mike Williams is a strong proponent of divorce mediation as opposed to divorce litigation.  Quite simply there can be no winner in a divorce, more particularly when there are minor children involved.  Our courts have often expressed the view that they cannot, and will not, declare a winner in divorce litigation.

Firstly, a marital relationship is like an onion, it comprises layer upon layer of fine filament put together over many many years.  For a court to peel back layer upon layer to find the root cause of the breakdown of the relationship is impossible. 

Secondly, save for the mega rich, the family pot of assets is finite and not bottomless.  Whatever the parties spend in what one must accept as being expensive litigation, in fighting a divorce, inevitably comes out of the family pot, leaving less to be allocated between the parties to move on with their lives at the end of the fight.

Successful divorce mediation requires an acceptance by the parties that, firstly, the marriage is over and that the consequences need to be resolved in a sensible and practical manner. Secondly, while the husband and the wife may no longer wish to be married to each other, they will remain the parents of their children and for this reason, an unholy war will have a detrimental affect not only upon the children themselves, but also on their own relationships with the children.

While divorce mediation does not work where one party is hell bent on revenge or punishing the other spouse for whatever reason, what is undoubtedly true is that a divorce action is a very expensive and largely ineffective weapon of revenge and exacting punishment upon another.

A positive feature which we have noted over the years of conducting divorce mediation is that it has a consequence of establishing the basis for a constructive working relationship between the parties - they don’t have to like each other, but they certainly need to work together in the best interest of their children.