Dispute resolution techniques assist the resolution of antagonisms between parties that can include citizens, corporations, and governments. Family mediation offers to the familyinconflict the option to utilize as an alternative to the legal system, an efficient, costeffective dispute resolution process to assist them in resolving their dispute. To do this, you need to discuss what needs are not being met on both sides of the conflict and ensure mutual understanding. Pdf legislation and employment relations in south africa. Dispute resolution procedures are still problematic in practice processes not followed invalid objections. The conciliator will attempt to resolve the dispute between the parties. Generally, the first step in the legal process is a letter of demand, which is sent to the other party. Various forums of alternative dispute resolution adr are used outside or as an addition to formal court proceedings.
A conciliation meeting is set up where a mediator is appointed to attempt to facilitate an outofcourt settlement. How does the south african labour dispute system work. Cappelletti, m aalternative dispute resolution processes within the. South africa may be regarded as a sui generis in this instance because the lra binds south africa to adhere to such standards. Alternative dispute resolution adr in south african legal system. A lost skill, negotiation is a process of the parties themselves or via skilled representatives, negotiating a deal with the other disputant. Family mediation is a growing profession within south africa comprising primarily of family attorneys, psychologists, and social workers. Chambers global 20152018 ranked tim in band 4 for dispute resolution.
Conflict resolution and peace buildind in africa as a. South africa has not adopted the model law but has instead chosen to enact local legislation in the form of a draft bill that is intended to combine the best features of the model law and the uks arbitration act 1996, together with certain features of the arbitration act 42 of 1965 which have been found to work well in practice over the years. This article discusses the emerging case law on the. Alternative dispute resolution adr in the workplace accord. Alternative dispute resolution adr, or external dispute resolution edr, typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. Dispute resolution mediation cliffe dekker hofmeyr. South africa given the costly process of litigation. As a first step it published a draft international arbitration act for information and. The labour relations act of 1995 lra makes it very easy for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory disputeresolution forums. Drawing on the extensive knowledge of our africa practice lawyers as well as experienced local counsel in each of the jurisdictions, the guide answers some of the key questions asked by those facing disputes in africa and by potential investors into africa wanting. The labour relations act of 1995 lra makes it very easy for employees to challenge alleged unfair dismissals and other unfair practices at private or statutory dispute resolution forums. Mediation and conciliation the law reform commission is an independent statutory body established by the law reform commission act 1975.
South africa, sri lanka, and ukraine, which are more fully described in the case studies, at. Without any doubt, the changes in the namibian labour dispute resolution system resemble that of south africa, where the negotiated lra of 1995 was enacted to replace the 1956 lra. Tim fletcher is the national practice head for the dispute resolution team. Any employee who has a grievance is entitled to make use of the grievance procedure. The commission may perform any of the dispute resolution functions of a council or an accredited agency appointed by the council if the council or accredited agency fails to perform its dispute resolution functions in circumstances where, in law, there is an obligation to perform them. Mediation and conflict resolution in south and southern africa. The aggrieved employee must start off by completing a dispute referral form and lodge it with the relevant bc or with the ccma. Litigation is often associated with an oversupply of disputes and an undersupply of resources to cope with the volume of such disputes. We also represent clients in other dispute resolution fora, including mediations, adjudications and expert determinations. Modeling the civil litigation process in south africa. The term alternative dispute resolution or adr is often used to describe a wide. Chambers global 20192020 ranked tim in band 3 for dispute resolution. Legislation and employment relations in south africa.
South african employers and employees are rely ing heavily on. This guide provides an outline of the different stages in court proceedings in south africa, and sets out some of the options available to those involved in litigation. Lowlevel disputes in africa can spiral into violence and conflict due to the lack of effective judicial systems that can provide a credible and timely process for resolving differences. Professor tana pistorius department of mercantile law university of south africa abstract. Alternative dispute resolution adr procedures the background traditional dispute resolution procedures private negotiation 1. The sca is seated in bloemfontein and is the highest court in south africa, except for constitutional matters. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding.
A narrative overview of workplace dispute article pdf available in journal of governance and regulation print 44 september 2015 with. Clarifying involves getting to the heart of the conflict. Association of arbitrators southern africa to appoint an adjudicator and shall furnish the other party with a copy of. Tax controversy and dispute resolution multinational corporations mncs are facing the most challenging tax environment in history. In addition, individual guidance notes offer descriptions and comparisons of each type of adr together with discussions of the applicable rules under the. The spectrum of dispute resolution techniques the conventional model of dispute resolution is one of an adjudicative process, most frequently fulfilled by the courts. Guide to the worlds leading lawyers 20092011 listed him among south africas preeminent litigation lawyers in litigation and emerging markets. Negotiation, mediation, arbitration and ombudsmen addresses the increasing use of alternative dispute resolution mechanisms in resolving disputes rather than resorting to courtbased litigation. A letter of demand sets out the cause of action on which. Intergovernmental dispute resolution in focus dullah omar institute.
Juta alternative dispute resolution in south africa. Stepbystep guide to mediation in the magistrates court. Understanding the civil litigation process in south african courts introduction whether you are the plaintiff, defendant, applicant or respondent, it is important to know your rights, options and recourse available in south african courts when seeking to. Dispute resolution association of south africa adrasa and more. A properly managed mediation process, guided by an experienced mediator selected by the parties to the dispute can often result in a solution that makes commercial sense and preserves the relationship between the parties. The party who refers the dispute must satisfy the councils secretary that a copy of the referral has been served on all other parties to the dispute. Mediation is a wellestablished form of dispute resolution. Adr has become popular because of perceived benefits such as confidentiality, expedited. Tax controversy and dispute resolution pwc south africa. Evident from responses received from sars of late, is that sars must be receiving countless objections and queries. In the south african case, there were many parties to the mediation and. With a strong emphasis on practical aids, practical guidance dispute resolution will assist you with stepbystep guidance on the dispute resolution processes, relevant legislation and rules.
In the outline of advantages and disadvantages of dispute resolution processes provided below, a simplified. Guide to dispute resolution in africa herbert smith freehills llp. Read south africa chapter in getting the deal through dispute resolution 2014, authored by director des williams. It focuses on commercial disputes in the high court. South africa dispute resolution profile last updated. Mediation is the process whereby a third party, namely a mediator, assists the parties in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute. Panellist reg mason, who took part in some of the stages, says it was a series of very constructive steps, painstakingly put. However, adr is also increasingly being adopted as a. South african law governs all questions of procedure for example, evidence, the execution of judgments and the taxation of costs, but not measure of damages. By max rainer on may 28, 2019 in news, civil litigation and alternative dispute resolution, employment law it is a well known rule in the commission for conciliation, mediation and arbitration ccma that legal representation in unfair dismissal disputes arising from misconduct are only allowed at the commissioners discretion.
Current tax dispute resolution landscape practical issues. As the illustration opposite shows, litigation is a process. Civil litigation and alternative dispute resolution. Dispute resolution procedure the south african wood. Impact and issues of alternative dispute resolution in south africa. Such disputes may, by agreement, be dealt with via private nonstatutory dispute resolution forums such as amsa, afsa, tokiso and others. Arbitration is a form of alternative dispute resolution. Dispute resolution this product deals with both internal an external disputes in the workplace, ccma, bargaining council and labour court. The council may condone the late referral of a dispute for conciliation on good cause shown 6. A grievance is any feeling of dissatisfaction or perceived. According to schapiro the ideal court, or more properly the prototype of the court, involves1.
Guide to dispute resolution in africa herbert smith. South africa dispute resolution profile implementation of map agreements ns response detailed explanation where publicly available information and guidance can be found c. To investigate the causes of disputes in the south african construction industry. To this end it has created the dispute resolution centre drc, recognised by the ccma and managed by qualified accredited full time commissioners, with offices throughout south africa. Adr moves from outside to inside government in south africa. This section examines dispute resolution rules, legislation and procedures, as well as matters which have been resolved through negotiation, mediation, arbitration, collaborative law and litigation. It generally only deals with cases referred from the high court, but statutory provision is made in section 3 of the tax administration act for direct access from the tax court. Advantages and disadvances of dispute resolution process. The system of dispute resolution in south africa has evolved from the shortcomings and problems experienced with the old system of labour relations and dispute resolution before the advent of democracy in 1994 grogan 1999. Are there any model timeframes for the steps taken by your competent authority from the receipt of a map case to the resolution of the. Advantages and disadvantages of dispute resolution processes in order to select the most appropriate process, it is important to understand and appreciate the advantages and disadvantages of the various dispute resolution processes. Alternative dispute resolution techniques can strengthen dispute settlement systems and bridge the gap between formal legal systems and traditional modes of. The goal of this step is to get both sides to agree on what the disagreement is.
Arbitration procedures and practice in south africa. The processes and procedures are very flexible, user friendly and deliver justice in an informal way to the. From this premise, the lra was enacted to promote, among other things, an effective and efficient labour dispute resolution system. Arbitration in south africa news south african african.
Using game theory techniques, we will construct a two person game where a defendant is presented with a case, and based on certain signals, he makes an offer to settle, it is then up to the. Appropriate dispute resolution world bank documents. This mediation process applies to parties in both actual and potential litigation. This system was characterised by high costs, prolonged legal action and low settlement rates. Read the south africa chapter in the international comparative legal guide to international arbitration 2014 11th edition, authored by director des williams. The procedure for the resolution of most labour disputes can be summarised as follows. Modeling the civil litigation process in south africa using game theory t. The term dispute resolution is sometimes used interchangeably with conflict resolution, although conflicts are generally more deeprooted and lengthy than disputes. The legal 500 emea 20 2016 recommended us in tier 2 for dispute resolution. An exploratory study of dispute resolution methods in the. Nigeria, republic of south africa, mozambique and kenya and in a further 10. Dispute resolution or dispute settlement is the process of resolving disputes between parties.
Jonathan for his expertise in dispute resolution, restructuring and insolvency, and construction. Dispute resolution in the construction industry the construction industry has a long tradition of reliance on a dispute resolution process rather than formal litigation. Consult your attorney or labour specialist to design a document that better suits your companys needs grievance policy and procedure 1. Conflict management and dispute resolution, part 3 occupational. Dispute resolution process south african revenue service. Our dispute resolution practice is one of the strongest in.
384 276 460 1239 746 661 1296 888 298 478 159 944 1284 164 1121 785 803 205 728 711 400 104 1395 1166 255 671 888 734 464 774 117 144 9 1452