CHAPTER 2

THE PROBLEM

a) What is ADR

2.1 ADR is the generally accepted acronym for alternative dispute resolution. Most simply put, ADR denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of ADR, however, makes no mention of a vital consideration. This is that ADR provides an opportunity to resolve disputes and conflict through the utilisation of a process that is best suited to the particular dispute or conflict. For this reason many ADR practitioners prefer to use the acronym to denote the words “appropriate dispute resolution”.

2.2 ADR thus involves not only the application of new or different methods to resolve disputes, but also the selection or design of a process which is best suited to the particular dispute and to the parties in dispute.

2.3 The field of ADR therefore covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. The most common types of ADR include negotiation, conciliation, mediation and arbitration.

b) Why ADR

2.4 There is a wide perception that the formal system of justice in the country before the commencement of the present constitutional dispensation suffered from the effective exclusion of most South Africans from the forming and execution of legislation.^[1] For many, a foreign, dominant, Western legal system, was seen to be superimposed on an intuitive, indigenous legal system.^[2] The law was largely perceived by blacks to be an instrument of oppression.

2.5 The inability to meet the needs of the ordinary citizens was however not merely due to the content of the substantive law, but also because the structure and procedural requirements of the courts meant that many people were denied access to the courts.^[3] Many of the peculiar problems facing the black community stemmed from the largely ineffective administration of the justice system in black areas. The legal problems as well as problems of social adjustment encountered by urban blacks were not being solved. It is therefore not strange that people resorted to self-help in the form of unofficial or folk institutions. In urban areas different forms of community courts were instituted.

2.6 These courts had their philosophical background in the customary law that was being practised by traditional leaders in traditional courts in the rural areas. It could however also be seen as a particular application of the consensual principles of ADR and its non-authoritarian consensus-producing processes within the structure of a specific community and according to the culture of its prevailing moral norms and social standards.^[4]

2.7 The new Constitution of South Africa^[5], with its Bill of Rights, is based on the principle that all people are equal before the law. The problem is that the equality thus achieved will be more of a facade than a reality if people are still de facto excluded because, due to past injustices, they do not have the economic, social or cultural ability to make use of those rights or to participate meaningfully in the administration of justice. What is therefore necessary is an attempt to add a “social” dimension to the Rechtstaat in terms of which even the disadvantaged and poor will be entitled to representation and information. In this setting consideration may be given to alternative remedies and processes which may make justice fair and more accessible. Community courts may therefore still have an important role to play even in the new dispensation.

2.8 It is however also true that, quite apart from the problems experienced by those previously disenfranchised, or otherwise powerless, the justice system in South Africa is under constant scrutiny and criticism from various interest groups (business, labour, religious groups, cultural groups or community groups) continually looking for more speedy, more effective, less cumbersome, less expensive and often less conflicting ways of resolving disputes and problems. This is the case in most advanced countries even those with very sophisticated judicial systems.^[6]

2.9 The most common general complaint about the current justice system in South Africa is that the cost of litigation is prohibitive. This prevents meaningful access to courts and even those with access are often victims of delay. For most litigants, delay means added expense and for many people justice delayed is justice denied. Delay combined with the cost of litigation has put justice beyond the reach of the ordinary citizen. The incomprehensibility and adversarial nature of the process with a resulting lack of control (parties can only participate in an indirect manner) furthermore leads to a sense of frustration and disempowerment. Courts offering only trials are furthermore limited in their response to a legal dispute. Litigation often creates winners and losers and even winners may feel like losers given the limited nature of many legal remedies imposed from a limited range of win or lose options.

2.10 In this regard it is to be noted that modern developed Western societies have in the last twenty years or so come to appreciate the necessity for access to justice through alternative dispute resolution techniques based on what can be called “co-existential justice”.^[7] This form of justice has however always been part of African and Asian traditions where conciliatory solutions were seen to be to the advantage of all and often as a sine qua non for survival.

2.11 Effective government is largely dependent on a respected legal system. The challenge facing the democratic state is to ensure that the justice system is acceptable and accessible to the larger community.

2.12 The Justice Ministry has already started transforming the justice system at various levels in line with democratic values. It may be that the introduction of ADR-techniques supplementing formal justice systems at different levels may help to provide South Africans with an opportunity to establish an acceptable justice system that will be swift and effective.

c) ADR today

2.13 Traditional forms of dispute resolution which, for present purposes, may be termed ADR processes, have long existed in rural South Africa. Unofficial dispute resolution has furthermore been the norm in metropolitan areas for as long as these areas have existed. The earliest unofficial people’s courts were the civic associations with dispute-settlement functions which were found in 1901 in the township of Uitvlugt in the Cape Town area.^[8]

2.14 In the latter part of the 1970's the people’s courts were generally known as makgotla

and should be distinguished from the politicised people’s courts that could be found in the mid-1980's. In 1989 new structured people’s courts emerged. They are today successfully functioning as community courts.^[9]

2.15 Many different institutions, governmental and non-governmental, have over the years tried to address the question of integrating, controlling , acknowledging or formalising these institutions. The State’s efforts to control these alternative institutions through the establishment of advisory boards, urban and community councils and town councils proved unsuccessful. More recently, attempts have however been made by a number of NGO’s to introduce more appropriate forms of dispute resolution to communities. Examples of such initiatives are those being conducted by the Community Dispute Resolution Trust (CDRT) and the Community Peace Foundation. These initiatives have met with mixed degrees of success.

2.16 Commercial arbitration has long been part of the dispute resolution framework in South Africa and in other Western countries. It is well established in South Africa. The Alternative Dispute Resolution Association of South Africa (ADRASA) and more recently the Arbitration Federation of South Africa (AFSA) have been significant attempts to institutionalise private commercial arbitration and, to a much lesser extent, mediation. Similar initiatives exist in the field of engineering and construction. As stated in par 1.2 above, commercial arbitration will be discussed in a separate Working Paper.

2.17 In the 1970's the major shift that took place in industrial relations gave rise to a need for more appropriate forms of dispute resolution in the workplace. This need was filled at the time by the Independent Mediation Service of South Africa (IMSSA) which was instrumental in introducing forms of mediation and arbitration. The success of this initiative has been borne out by the extensive reliance on mediation and arbitration in the new Labour Relations Act and by the establishment of the CCMA to carry out these functions.

2.18 The introduction of alternative dispute resolution methods into the field of family disputes (divorce) has also been significant. Respondents are specifically invited to consider the successes and failures of these and similar endeavours.

d) Goals of ADR

2.19 The goals of ADR may be described as follows:

a) to relieve court congestion, as well as prevent undue cost and delay;
b) to enhance community involvement in the dispute resolution process;
c) to facilitate access to justice; and
d) to provide more effective dispute resolution.

2.20 ADR experts in the United States (where the practice of ADR is well advanced) have expressed some doubt as to whether the practice of ADR can ever relieve court congestion. Nor is there any evidence to show that this has been the case in South Africa. Undoubtedly, however, there are methods of resolving disputes which are less expensive and more expeditious than formal litigation. This is being borne out in the labour field where research has shown that dismissal disputes were generally dealt with on a less costly and more expeditious basis by arbitration than they were in the Industrial Court.

2.21 A second goal of ADR, namely to enhance community involvement in the dispute resolution process, is of particular importance in South Africa. South Africa’s recent history has served amongst other things to alienate a significant section of the population from the formal court system. The development of appropriate forms of dispute resolution which encourage and enhance community involvement and bear the stamp of legitimacy is therefore of cardinal importance to those who would see disputes and conflict effectively resolved.

2.22 The third goal of ADR, namely to facilitate access to justice, is perhaps ambitious. For example, parties, who with the assistance of a mediator, are able to resolve their dispute may not regard themselves as having received justice but may simply consider that they have attained the more modest goal of settling their dispute. Undoubtedly, dispute resolution in its broadest sense does, and will continue, to facilitate the increased resolution of dispute.

2.23 The most important goal of ADR is arguably the fourth goal stated above, namely to provide more effective dispute resolution. As already stated, it is of the essence of the study and practice of alternative dispute resolution to provide mechanisms and processes which will resolve disputes more effectively than an automatic recourse to litigation. Indeed, one of the most significant effects that dispute resolution practice has had in South Africa over the last decade is to challenge the view that adversarial litigation is the only means, apart from agreement, of resolving disputes.

e) Categories of dispute resolution

2.24 Three major categories of dispute resolution which may be considered are:

a) Dispute resolution processes involving private decision-making by the parties themselves. This category would include negotiation and mediation;
b) dispute resolution processes involving private adjudication by third parties. Arbitration would fall into this category; and
c) dispute resolution processes involving adjudication by a public authority. This category would include administrative decision-making and formal litigation before the courts.

f) State control vs state support

2.25 It is essential to recognise a fundamental difference between adjudication at the hands of public authorities and ordinary forms of ADR. Arbitration, mediation and other forms of alternative dispute resolution rely for their effectiveness on the willingness of the parties to submit to the process. They do so by agreement. On the other hand, the compulsory jurisdiction conducted at the hands of the state relies for its effectiveness on the ability of one party to compel the other to submit to the jurisdiction of the state.

2.26 This distinction raises a fundamental issue whether or to what extent ADR processes should be introduced into the formal and compulsory jurisdiction of courts administered by the State.

2.27 The introduction of community courts utilising ADR processes would be one such example. Another example which is at present in operation is the formalisation of alternative forms of dispute resolution such as conciliation, mediation and arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in terms of the new Labour Relations Act. Other examples are victim-offender mediation programmes in criminal matters and mediation in divorce disputes.

2.28 Notwithstanding the public/private distinction referred to above, there are many instances of the introduction of ADR processes as adjuncts to the formal system, for example, victim-offender programmes as adjunct to the criminal courts; conciliation and arbitration under the auspices of the CCMA as adjuncts to the labour dispute resolution system; the use of mediation in family disputes; more sophisticated pre-trial procedures in the formal court system and others.

2.29 An interesting development in the United States is the introduction under the auspices of the formal justice system of what are termed “multi-door court-houses”. These are state institutions where parties are directed to the most appropriate form of dispute resolution for their particular dispute (whether it be mediation, arbitration or adjudication), all processes being available under a single roof.

2.30 Another way to approach the introduction of ADR processes into South African Communities would be to lend state support to private initiatives in the field.

g) ADR: a solution?

2.31 The question to be addressed is therefore whether the administration of justice will be enhanced if a broader concept of dispute resolution could be accommodated within the formal legal system. The Law Commission will endeavour, with the assistance of all role players, to facilitate this investigative process. In this effort ADR will have to be evaluated with a view to improving existing ADR initiatives. The further role of ADR with regard to access to justice, juvenile justice, family law, the simplification of the criminal and civil justice system as well as in the area of customary indigenous law will have to be investigated. It is important to find alternatives capable of better accommodating the urgent demands being expressed in a time in which societal transformations are taking place at an unprecedently accelerated pace.

^[1]Carpenter, G “ Public opinion, the judiciary and legitimacy” (1996) 11 SAPL 110.

^[2]Van Niekerk, GJ “People’s courts and people’s justice in South Africa - new developments in community dispute resolution” (1994) 1 De Jure 19 (hereinafter referred to as Van Niekerk).

^[3]Grant, B & Schwikkard, P “People’s Courts?” (1991) 7 SAJHR 304.

^[4]Faris, J “ADR, community dispute resolution and the court system” Community Mediation Update CDRT Newsletter No 10 April 1996, 7.

^[5]Constitution of the Republic of South Africa, Act 108 of 1996.

^[6]Omar, AM “AFSA: The need for alternative dispute resolution” Address delivered at the opening of Arbitration House as extracted in 1996 9 Consultus 126.

^[7]Cappelletti, M “Alternative dispute resolution processes within the framework of the world-wide access-to-justice movement” (1993) 56 The Modern Law Review 287.

^[8]Van Niekerk 22.

^[9]Op cit.

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