It is a recognised fact that the vast majority of businesses, and many individuals, will be involved in a dispute at some stage or another. With the increasing costs and formality of litigation, alternative dispute resolutions have become the favoured tool of addressing disputes.
Arbitration the most prevalent ADR
There are several variants of alternative dispute resolution (ADR) – mediation, settlement negotiations, early neutral evaluation, conciliation, facilitation, mini-trials and summary jury trials but the most prevalent form of ADR is arbitration.
Most arbitration results from pre-dispute contracts, where both contractual parties have agreed on arbitration, not the formal court system, as the preferred means of resolution should a dispute arise.
The beauty of arbitration is that both parties have a say about who the arbitrator will be, unlike the court system where the presiding judge is selected by the courts. An arbitrator is generally an attorney, retired judge or an expert in the specific field relating to the dispute.
The task of the arbitrator is to be as impartial as possible and to render a decision or award on liability or damages. This arbitration award is legally binding and generally not open to appeal unless agreed upon in advance by the disputing parties. It is possible for the award to be entered as a judgement after it has been confirmed by a legitimate court.
Arbitration is particularly prevalent in construction contracts, banking disputes, intellectual property issues and employment harassment charges but the one area that has the potential to affect all of us is medical malpractice.
Medical malpractice disputes are commonplace
The medical fraternity is notorious for its protectionism, both in South Africa and abroad. Should a dispute arise regarding liability or malpractice, the smart thing to do would be to contact dedicated medical malpractice lawyers or personal injury attorneys who will facilitate the arbitration process at a fraction of the cost of litigation.
South Africa is slowly cottoning on to the value of dispute resolution, but instead of following the American model, where litigation is commonplace and a jury of one's peers decides the outcome, arbitration seems to be the form of choice.
The Pros of ADRs
- Much cheaper than formal litigation
- More relaxed procedure
- Fast moving and efficient
- Private and confidential
- Disputing parties are more in control of the process
- Informal investigation allowed
- Parties can agree to exchange documentation beneficial to the award
- Parties may select the arbitrator
- No jury of one's peers
The cons of ADRs
- Lack of full range of discovery
- Limited cross-examination of witnesses
- Impossible or difficult to appeal award
- No written supporting documentation explaining the award
- Punitive damages are unlikely to be awarded
