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3.1 The Commission needs to know from interested parties essentially three things. The first is whether they consider there to be a role for ADR in civil practice. The second is what precisely (if it is considered that there is such a role) it should be. The third and - perhaps the most important aspect in determining any practical course of action - how should this be achieved.
3.2 In offering views in this regard, respondents may care to give some consideration to the following:
(i) Scope of ADR
3.3 ADR is defined in different ways. One definition covers all alternatives to litigation as a method for resolving disputes. That definition therefore includes arbitration. It is however more common to restrict ADR to non-adjudicative forms of dispute resolution, excluding both litigation and arbitration. For this reason, and in view of the fact that arbitration - international and domestic- are being dealt with separately by the Commission (see p1 above) the use of arbitral mechanisms in civil practice is not explored in this chapter.
(ii) Conciliation and mediation
3.4 Although there is a lack of uniformity in the use of the terms mediation and conciliation[1] both refer to a consensual means of dispute resolution where an acceptable third party is called in to facilitate the negotiation of a settlement between the parties. Even if the third party is required to recommend a solution if negotiations fail to achieve a settlement, this solution only becomes binding on the parties with their consent.
3.5 Mediation is not without its disadvantages and problems[2]. However if successful it should offer a significantly quicker and less expensive means of resolving a dispute than either litigation or arbitration. The parties, with the assistance of the mediator, are also able to achieve a pragmatic solution based on the parties' interests, rather than one based on their legal rights.
3.6 The extent to which it is necessary or desirable to deal with mediation or conciliation in the context of international arbitration legislation is briefly considered in Discussion Paper 69 of the Law Commission.[3] No additions to the UNCITRAL Model Law were recommended for this purpose. Whereas some jurisdictions, e g Hong Kong have included one or two provisions in the arbitration legislation to deal with specific problems (court appointment of a conciliator where the parties cannot agree on a conciliator and a provision empowering a person to act as arbitrator although that person has previously acted as conciliator in the same dispute), some other jurisdictions have endeavoured to promote the use of conciliation by a more detailed statutory framework, influenced by the UNCITRAL Conciliation Rules of 1980.[4] These provisions only apply with the consent of the parties where they agree to resort to conciliation and are designed to facilitate successful conciliation.
3.7 Is there a need for similar legislation in South Africa? If so, what matters should be dealt with? Should it be included in the revised Arbitration Act as in India and Nigeria or should it be in a separate statute?
(iii) Court-annexed forms of ADR
3.8 Another way of categorising ADR techniques which is relevant to this investigation is to distinguish between those subsidiary to the judicial process and those which are alternatives to the judicial process.[5] Examples of "subsidiary" ADR in other jurisdictions are court-annexed mediators in Canada and court-appointed referees in Australia. In South Africa s19 bis of the Supreme Court Act 59 of 59 provides for certain matters to be referred by the court with the consent of the parties to a referee. A recent example of this provision being used is LTA Construction Ltd v Minister of Public Works and Land Affairs.[6] There is also the Short Process Courts and mediation in Certain Civil Cases Act 103 of 1991. To what extent can these existing procedures be better utilised and improved? To what extent should parties be compelled to use some form of court-annexed ADR? Lord Woolf[7] does not believe that ADR should be compulsory "either as an alternative or as a preliminary to litigation".
3.9 ADR is nevertheless closely linked to the reform of civil procedure and arbitration procedure. Settlement by mediation or conciliation will be more easily achieved if the parties are acutely aware that failure to settle will result in an imposed solution in the very near future.[8] Improved litigation and arbitration procedures will lead to more effective ADR, particularly mediation. It is also significant that the interest in ADR has been mainly in countries with a common-law adversarial system of civil procedure. As litigation in civil-law countries is quicker and less expensive there has been correspondingly less interest in ADR.[9]
(iv) Mini-trials and further forms of ADR
3.10 Other forms of ADR have been considered for South Africa.[10] What other forms of ADR are appropriate for resolving commercial and civil disputes in South Africa and what should be done to promote their use?
(v) The use of experts
3.11 In recent years there has been increasing dissatisfaction amongst parties to commercial contracts and certain consumer agreements with the high cost and delay associated with resolving disputes by both litigation and arbitration, particularly if the arbitral procedure is dominated by traditionally- minded lawyers resulting in the arbitration turning into "privatised litigation". This has led to increasing use of dispute-resolution clauses in contracts providing for the resolution of any dispute arising out of that contract by an expert. Depending on the nature of the dispute, the expert will be a lawyer, accountant or person from another appropriate professional discipline who is required to resolve the dispute "as an expert and not as an arbitrator". The decision of the expert is declared to be final and binding on the parties.[11] For a recent local decision concerning such a clause see Chelsea West (Pty) Ltd v Roodebloem Investments (Pty) Ltd[12].
3.12 Although this procedure will usually be quicker and cheaper than a formal arbitration and is usually subject to strict time limits, the procedure to be followed and the procedural fairness of the procedure and any hearing will largely depend on the provisions of the contract, which may leave the procedure largely in the discretion of the expert. It must be borne in mind that in a standard-form consumer contract (e g for the purchase of a sectional title unit) the purchaser will have no bargaining power to change the terms of the dispute- resolution clause. As the clause is not an arbitration agreement, it could also provide that each party should bear its own costs, irrespective of the outcome of the proceedings. Section 35(6) of the Arbitration Act 42 of 1965 prohibits such a provision in an arbitration agreement referring future disputes to arbitration. One justification for s 35(6) is to protect the weaker party (the consumer) against such a provision in a standard-form contract.
3.13 Because the expert is not an arbitrator, neither the powers of assistance nor the powers of supervision and interference conferred on the court by the Arbitration Act apply. The abuse of the court's powers in relation to arbitration by a party wishing to delay the making and enforcement of an award are no doubt one of the reasons for the use of "expert" dispute-resolution clauses.
3.14 However, in the event of one party failing to comply with the expert's decision, the other would have to apply the court for an order requiring the party in default to comply with its contractual obligation. The court must have some powers of supervision. What are the extent of these powers: would a refusal to enforce be limited to cases of fraud and collusion or where compliance would be contrary to public policy? As the expert is making the decision on the basis of professional expertise and arguably not performing a quasi-judicial function, would a dissatisfied party be able to sue the expert for negligence? Where the expert's own investigation has been less thorough than the party was entitled to expect, the answer could well be in the affirmative.
3.15 What are the advantages and disadvantages of using an expert as opposed to an arbitrator? Are there adequate remedies to protect a party (particularly a consumer) against the abuse of this procedure? What is the extent of the court's powers and is there any need for statutory intervention?
(vi) Ombudsman
3.16 The value of an Ombudsman for dispute resolution was recognised in England by both the interim report of Lord Woolf[13] and the earlier report of Beldham LJ on ADR to the General Council of the Bar[14]. Lord Woolf regards the Ombudsman as part of ADR. An Ombudsman can either be appointed by statute to protect the public against administrative injustice and maladministration by a government agency or can be privately appointed and funded, particularly in service industries like insurance and banking. Ombudsmen have wide powers of investigation and their recommendations need not be limited to what is strictly permitted as a matter of law.[15] Their services are usually free to the consumer who does not need legal advice. The consumer is not bound by the Ombudsman's recommendation and is not precluded from taking the matter to court or to arbitration. Because Ombudsmen are appointed for a specific industry or sector, they also develop considerable expertise in dealing with disputes in their field. Apart from the success achieved by Ombudsmen in dealing with individual complaints their annual reports serve to identify problem areas and to raise standards generally in respect of the industry for which they are appointed.[16] Regarding the use of the Ombudsman by the insurance industry in South Africa see T Cohen.[17]
3.17 What are the particular advantages of the Ombudsman compared to other forms of ADR, for example small claims arbitration or mediation? What other industries in the private sector in South Africa and what entities in the public sector could usefully consider appointing an Ombudsman?
(vii) Dispute avoidance procedures in long-term contracts
3.18 Particularly in big construction projects, involving work over a number of years and with large amounts at stake, increasing use is being made of an independent Dispute Resolution Adviser (DRA) or Dispute Resolution Board.[18]
3.19 The DRA is usually engaged in addition to the professional employed by the employer to administer the contractor's performance of the construction contract. The DRA monitors progress and meets at regular intervals with representatives of the employer, the professional administrator, and the contractor, taking note of problems as they arise. The main function of the DRA is to promote cooperation between the parties and either to assist them to avoid disputes or to resolve them before they can escalate. The DRA is particularly useful where the employer is a government agency employing an in-house professional to administer the contractor's work.
3.20 What is the potential for applying this technique in South Africa? To what extent could it ensure that public money used on large construction projects is well spent and that vast amounts of time and money are not wasted in protracted arbitrations or court cases?[19] In respect of what other types of contract could the technique be usefully employed?
(viii) Labour law
3.21 A particular field respondents may wish to consider is that of labour law. The Labour Relations Act, 1995 took effect on 11 November 1996. It provides for mediation and arbitration. Does it do so adequately - or must its Commission for Mediation and Arbitration be given time before the question can be answered? Does that mechanism lend itself to wider application for other types of civil or commercial disputes?
(ix) Comparative law
3.22 In the United Kingdom the Heilbron Committee’s report argued in June 1993 that there were grave defects in the workings of the civil justice system in the United Kingdom. In 1994 the Lord Chancellor responded to the profession’s initiative by appointing Lord Woolf to conduct a review of civil justice. This took place against the background of a general feeling of dissatisfaction with civil justice in that country, and in particular, with delays and costs.
3.23 In his interim report (Access to Justice) published in June last year, Lord Woolf sought to identify primarily what a civil justice system should achieve; what was wrong with the present system; what new approach to justice was required; and how this was to be achieved.
3.24 Commenting on these recommendations in the journal of the Bar of England and Wales[20], Anthony Speaight warned that “[t]he harsh truth is that the spiralling cost of civil litigation is a problem of intractable complexity”. He continues:
“Over the last decade there have been many reforms of civil procedure. Some of the country’s finest brain power has shaped them. The theme of most of the innovations, such as written submissions and witness statements, has been greater use of paper procedures. The aim of all these changes has been to reduce the cost of litigation. Yet it is universally accepted that over that period the cost of civil litigation has soared. The record of arbitration, which is the private sector competitor to the courts, has in general been equally disappointing. If the solution was at all easy to find, one might have expected that arbitrators would have had the market incentive to discover it. But every commercial practitioner knows that arbitration is generally even more expensive than litigation.
These very observations ought to prompt the question whether the direction of the last decade’s reforms should be pressed any further. Indeed, the possibility should be squarely faced that today’s crisis is the very consequence of well-intentioned reforms of recent years”.
3.25 We quote this not as a reflection of any view yet formed by the Project Committee. It is not itself in any way dispositive of the questions posed above for responses. It represents however one (controversial) view in relation to the question of law reform which seeks to introduce ADR in the area of civil practice. The caution is not a new one. In Mr Justice Astbury’s adage: “Reform! Reform ! Aren’t things bad enough already?
x) Methodology
3.26 The point to be made in the present context is that if respondents consider that there is a role for ADR in civil practice, it is essential for them to suggest in practical terms how that role is to be realised. In this regard, any implementation of ADR necessarily cannot take place in a vacuum. The point is well-illustrated by the proposed new rule 37A[21] (of the Supreme Court rules) which is under contemplation.
3.27 If respondents are of the view that there is a practical role for ADR in the civil justice system; and are able to delineate the manner in which it could be incorporated in current rules of court and civil practice, it would also be useful to know precisely how it is proposed that this be achieved. For example, what specific legislative amendments, or changes to the rules of court are contemplated? (It must be borne in mind in this regard that the Rules Board is aiming at achieving a single set of basic rules applicable to all courts, the essential variance in as few respects as possible). If it is suggested that ADR be incorporated as a particular phase of civil practice (in a compulsory way? how enforceable? in limited respects?) what is proposed as regards methodology?
i) Overview
3.28 In South Africa the field of family and divorce mediation has developed in a very segmented fashion as services have over the years been provided along lines of race, culture, and income level. Different initiatives were established to deal with different components of the population.[22]
3.29 The different sectors of involvement that can be identified[23] in this regard are court and other state structures; private practitioners; Non-Governmental Organisations(NGO’s) in conjunction with university based services and welfare institutions; and Community Based Organisations(CBO’s) and traditional authorities.
aa) Court and other state structures
3.30 The two court structures presently engaged in mediation are the Office of the Family Advocate and the so-called Black Divorce Courts. Social workers in provincial structures are also often involved in this arena and court referrals result in intervention requests.
3.31 The Office of the Family Advocate has been in operation since 1990 and is specifically involved in settling disputes of custody and access. It also monitors all cases involving minor children and has a large contingent of trained mediators who offer a model of compulsory mediation.
3.32 The legislation and rules outlining the functioning of the Family Advocate have been criticised for not making proper use of mediation procedures. It is being said that the intervention of the Family Advocate is not voluntary and that the process can be intimidatory because of the need to establish facts. A neutral approach is furthermore impossible as judgments have to be made with regard to the parenting abilities of the parties and the mediator is put in the position of proposing solutions and making a judgment if the parties fail to agree.
3.33 In the Black Divorce Courts mediation is a limited, irregular and informal component of the settlement process.
3.34 In 1983 the Hoexter Commission recommended the establishment of a single family court for all the inhabitants of the Republic, irrespective of race, having comprehensive jurisdiction in regard to family matters. It was proposed that the court should consist of two separate components, a social component being the family court counceling service and a court component. The counselling service would include a conciliation function whereby warring spouses would be assisted to achieve constructive dialogue in order to minimise trauma for all parties concerned and resolve disputed issues by agreement.
3.35 In 1993 the Magistrate’s Court Amendment Act[24] flowed from the recommendations of the Hoexter Commission. It did not, however, give effect to all its recommendations. It did not, for instance, make provision for a dual function for the family court by incorporating a social and a court component and omitted to envisage the existence of private family mediation services associated with the conciliation function that was to form part of the social component of the court.
3.36 The 1993 Act has never been implemented as it received much criticism on substantive issues. Implementation was also regarded as being difficult from a technical point of view. The appointment of a taskgroup to re-evaluate the Hoexter Commission report and draft legislation in order to draft a bill in terms of which a pilot project for family courts may be installed, is now being considered. In this process the 1993 Bill may be repealed. As an interim provision a bill has been considered and adopted by Cabinet to make provision for access of people of all races to the Black Divorce Courts. This will only be a temporary provision until the taskgroup completes its work.
bb) Private mediation
3.37 Private mediation is practised by a large number of individuals who have been trained in mediation techniques. The mediation movement has developed to a very sophisticated level in most city areas, for example the Gauteng region, Durban, Port Elizabeth and Cape Town. It is however felt that private mediation services have largely been available only to those who can afford the fees of professional mediators, while the majority of black communities have had to rely on dispute resolution services of advice centres, community-based structures and traditional healers only.
cc) NGO’s and university- based services
3.38 The Non-governmental organisations, who are not directly government controlled, but have links with educational structures provide highly skilled services either free of charge or at minimal cost to communities that otherwise have very limited access to the law or dispute resolution procedures.
dd) CBO’s and traditional authorities
3.39 Community-based organisations operate in close cooperation with their communities. They are seen as accessible and responsive to community concerns. Advice centres and community-based para-legals are often the only resource in the community for residents who need information about maintenance, custody and divorce. They assist parties to resolve disputes without going to court. They also play an important role in educating communities about the law, their rights and mobilising communities to lobby for change. From research conducted it appears that in the past only the Community Dispute Resolution Trust was actively involved in solving family disputes in rural areas. In this regard it can be stated that, by reason of the various legal systems and the controversy that exists in the implementation of these legal systems, the community centres have delivered an important service in matters which could not be dealt with by a specific court system. Street committees and community courts have also settled many disputes about custody and maintenance.
3.40 Both CBO’s and NGO’s are at present severely constrained by a lack of resources. The change in government has presented a difficult funding situation as international funders have withdrawn much of their support and the government is slow to fill the gap.
3.41 The West Rand Family Mediation Project was established during 1995. The project is a collaborative effort by a range of governmental and non-governmental organisations working in partnership to provide a centralised divorce mediation service for the poorest members of the area. It is a parastatal that has been specifically established as a pilot project to research and explore the field of family mediation on a multi-disciplinary level. It is investigating and evaluating a specific model suitable to South African circumstances. A co-mediation process is being used with the help of volunteer and professional mediators. This involves a team of two mediators, one a family lawyer and the other a person qualified and experienced in marital and family work. It is felt that there should be a move away from what is termed a Eurocentric approach to the law and a need to Africanise the approach with regard to mediation.
3.42 In the rural community different methods of mediation are used as opposed to the metropolitan areas. Various traditional structures still play a very important part in regulating and mediating family disputes. A family member is chosen by both families at the formation of the customary marriage to mediate in future family disputes. There is also the aspect of polygamy that has a direct impact on the mediation process. Rural women do not have the same access to mediation procedures as is possible for their urban counterparts.
3.43 In its response to the SALC issue paper on the harmonisation of common and customary law, the Gender Research Project of CALS stresses that it considers that people do not necessarily have one set of cultural values only.
ii) Issues to be discussed
3.44 Issues that need to be discussed are, amongst others, the following:
* Are existing court structures making proper use of mediation procedures? If not, should this situation be rectified. If so, how?
* Is there a place for a form of compulsory family mediation or should mediation always be voluntary?
* Should mediation and conciliation functions be incorporated in a social component of the envisaged family court? If so, how should this be done?
* Should a community mediation service be developed that will be specifically linked to any of the present court structures? If so, how?
* Should community based mediation be developed within the structures of the community courts discussed below? If so, how?
* What should the professional status and reputation of individual mediators and lay- mediators be? Is a co-mediation model a viable option?
* The viability of the two pilot-projects (family courts and mediation centre) mentioned above?
* What should the state’s role in family mediation be?
3.45 Community courts have become the contemporary term used when referring to popular justice structures such as street committees and yard, block or area committees operating outside the formal justice system in urbanised “African ” townships and informal settlements. Mncadi and Citabatwa[25] refer to these justice systems as being informed by African traditional law, urban popular justice practices and religious law.
3.46 In contrast to the Roman Dutch legal system based on retributive justice, where the object is to establish blame and administer punishment, the informal courts identify responsibilities to meet needs and to promote healing and enforce values by using social pressure. Restorative justice and reintegrative shaming are two of the most important tools of the enforcement process. The judicial process, approach and reasoning used are all elements which echo indigenous South African procedures. It echoes the practice of makgotla, linkundla, ibunga and imbizo where the members of the community directly participate in questions and decisions. These popular justice systems have evolved to adapt their practices to urbanised circumstances.
3.47 Community courts should be distinguished from the people’s or kangaroo courts which existed within a political context in the 1980's, when “mob justice” was meted out by people who did not represent structures which ordinarily would deal with justice issues in those communities, and which earned popular justice an unsavoury reputation.
3.48 In most stable, organised communities there are at present street committees and civic structures that are functional. Indigenous township structures are more than merely courts. They are an integral part of the communalist world-view which inclines residents to compensate for the inadequacy and inappropriateness of state structures. This world-view is based on the principle of reciprocity. People obey because they know that they are going to need their peers at some future date. Family, tribe or village solidarity is often a sine qua non for survival. In addition to courts they are surrogate welfare, child care and support systems,burial societies and savings clubs, to name but a few functions. They thus form an integral part of organic township life throughout the country, be it Cape Town, Port Elizabeth, Soweto, Alexandra and stable areas in Kwa-Zulu Natal.
3.49 Community courts are a fact of life. A fundamental issue to be answered is whether, and if so, to what extent, the state should administer and regulate the courts, or lend its state support to private initiatives in the field. A hierarchy via a multi-tiered civic structure with a definite political alignment spell problems if participants do not share the same political allegiance. A solution may be for the state to create an avenue for the administration of justice within communities which will present the community with opportunities thereby empowering it to participate in the shaping of its justice system.
3.50 With the implementation of the community courts the state may hope to reclaim their space in the area of justice, regulate all forms of justice systems in the country, work towards a unitary system that will dispense justice, extend the arm of justice in order to be more effective, bring justice closer to the people on a grassroots level and make the justice system more accessible and friendly.
3.51 Seen from the viewpoint of the communities, the objectives will be to get recognition for the organic structures and popular justice concepts which had evolved in the communities over the years, to work towards having uniformity in different sections of the communities, to participate effectively in dispensing justice with a restorative perspective, to address some of the unacceptable ways the Roman Dutch system is dealing with justice, to participate actively in the policy formulation on issues of justice, to rebuild the social fabric of society, to assist in transforming the formal structures by introducing indigenous models, to strengthen popular justice further by introducing alternative dispute resolution models and to assist the State in working towards cheap and effective justice system.
3.52 The advantages of a community court system seems to be that it depends on voluntary participation, it is cheap and accessible, language is used which is understood within the community, there is an absence of legalese, it creates the opportunity of relieving the criminal justice system of certain disputes, it is based on restorative justice with its holistic approach to problem-solving, it is sensitive to local community values and background conditions, there are fewer delays, therefore swift and less formal justice which helps in the knitting of the social fabric.
3.53 The disadvantages on the other hand seems to be that the courts are vulnerable to political pressure, the jurisdiction factor could be a problem, there is a lack of investigative capacity and representation: youth and gender inclusivity could be an issue particularly in a rural setting, it currently has parallel status with the formal system, it is not necessarily applicable in all communities in South Africa, and there is an inability to involve people if there is no voluntary participation.
3.54 A matter of major concern is that the community courts should not be regarded as poor people’s justice for black people. In this regard it will be of paramount importance to ensure that minimum standards and guarantees should be maintained even in these alternative organs and procedures. The risk, of course, is that the alternative will indeed provide a second class justice. The courts should aim to uphold those safeguards of independence and training that are present in respect of ordinary judges and those formal guarantees of procedural fairness which are typical of ordinary litigation. It is however true that the present justice system cannot provide for issues of affordability, swiftness, repairing the damages caused by the offence and ensuring harmonious relations in communities (issues that are central to a restorative approach to justice) unless fundamental changes take place in the justice system. Far from being a cosmetic change, conciliatory justice may be able to produce these changes.
3.55 One of the characteristic features of the community courts have always been that civil and criminal cases flowing from the same set of facts were heard simultaneously. It is therefore accepted practice that the community courts would have jurisdiction with regard to criminal disputes. There is however great difference of opinion as to the scope thereof. Taking on criminal cases essentially means taking on the responsibility of determining guilt and innocence, an adjudicatory function which would imply extensive coercive control and would require extensive training[26]. A great amount of regulation will be needed and there should be clear boundaries about the type of cases dealt with and limits on the types of sentencing which they are capable of imposing. Since the civil and criminal aspects of dispute resolution in community courts are however so completely interlinked, it would not seem possible to discuss one aspect without the other.
3.56 The role of traditional courts and bringing them into the mainstream of a unified legal system is bedevilled by the political question with regard to the status of traditional leaders. In rural areas the traditional customary law is practised by traditional authorities. The question arises what the interaction, if any, should be between community and traditional courts.
3.57 It is important to state that any project of this kind, regardless of its informality, should adhere to the principles of the Bill of Rights of the South African Constitution. In this sense, special care should be taken to reconcile the informality and different legal approach to conflict resolution with the principles guaranteed in the Constitution.
3.58 Issues to be debated are, amongst others,the following:
3.59 What role if any should ADR play with regard to criminal disputes?
3.60 It should be remembered that mediation in the criminal justice context is not the same as mediation in civil disputes. There are five major differences that should be kept in mind:[27]
a) The offence has already occurred and consequently there is no continuing dispute;
b) the parties are not equal in that the offender committed the offence totally on his/her terms without regard for the victim;
c) mediation in the criminal justice context represents a shift towards “restorative” justice, which views crime as the violation of one person’s rights by another;
d) mediation in the criminal context contains an aspect of reparation that is not a component of mediation in the civil context;
e) mediation in the criminal context especially when it forms part of the sentencing process involves the final agreement being publicly aired in court. This would never occur in civil mediation where the outcome is confidential and remains simply a matter between the parties.
3.61 In South Africa ADR may be relevant to criminal law in the following areas:
i) Community courts
3.62 In the community courts no distinction is made between the criminal and the civil law issues flowing from the same case. See above for discussion.
ii) Victim-offender mediation
3.63 In victim-offender mediation the primary goal is seen as compensating the victim for the loss suffered as a result of the crime by making the offender take personal responsibility for making good this loss. The traditional system does not have this personal focus in that the offender is made accountable by paying a fine or promising to be of good behaviour. These punishments do not relate to the personal loss of the victim. The programme gives the victim an opportunity to tell the offender how the crime affected him or her. The offender has the opportunity to apologise, explain his or her behaviour and make some reparation.
3.64 Victim-offender mediation is at present being investigated as part of a separate issue paper on sentencing.[28] Project committees will be co-ordinating their efforts.
iii) Juvenile justice programme
3.65 The juvenile justice program is a process whereby offenders are diverted away from the court system or judicial process in the first instance. By agreement, the offenders and victims meet to discuss what has happened and negotiate measures for repairing damage caused by the offence. The meeting takes place in family forums chaired by a facilitator. Family and support persons of both victim and offender are invited to attend and be involved in the discussion and outcome.
3.66 An investigation into juvenile justice[29] has just been included in the Commission’s programme of investigation. A project committee has been appointed and the two committees will be coordinating their efforts.
iv) Family violence
3.67 Most writers do not extend the appropriateness of ADR to disputes where domestic violence is involved. The main reason for this is that ADR is a consensual process rather than coercive. A successful mediation therefore is predicated on the parties being able to negotiate as equals to seek solutions that are mutually beneficial. A relationship involving domestic violence is not characterised by negotiation as equals, but by the offender exerting control over the victim through violence that can be both physical and psychological. Mediation requires the victim to be able to negotiate effectively on his or her own behalf when previous attempts to do so may be exactly what resulted in the abuse.
3.68 However, there may be some merit in mediation as part of a deferred prosecution program in situations of family violence. Normal litigation, including the court, is not a hospitable environment for women who have been victims. If mediation is not available woman would be deprived of the choice to use it. Some authors think that it is possible to deal with the imbalance of power by insisting on strict procedural fairness, full participation of the less powerful party, addressing attempts at control by the perpetrator and supplying the less powerful party with support outside the mediation process.
3.69 In so far as family violence is concerned, an investigation [30]is under way. An issue paper has been published and comment is being incorporated in a discussion paper. This investigation is however primarily focussed on the question of how to get legal aid to a woman who is being battered.
3.70 As can be seen above, most of the issues regarding ADR and the criminal law are being investigated in other investigations of the Commission. The main issue to be discussed in this investigation will be the question of the criminal jurisdiction of the community court.
[1]Butler, D & Finsen E Arbitration in South Africa - law and practice Juta Cape Town 1993 10 (hereinafter referred to as Butler and Finsen).
[2]Butler & Finsen 14; Miller, J “Alternative dispute resolution (‘ADR) - common problems and misconceptions” 1996 62 Arbitration 186.
[3]South African Law Commission Arbitration: A draft international arbitration act for South Africa Discussion Paper 69 1996.
[4]See the Nigerian Arbitration Act of 1988 ss 37-42 and the Indian Arbitration and Conciliation Act 26 of 1996 ss 61 - 81).
[5]Odams, M “ The influence of commerce on the changing face of dispute resolution” (1996) 62 Arbitration 277.
[6]1992 1 SA 837 C.
[7]Right Honourable Lord Woolf Access to Justice Interim report to the Lord Chancellor on the civil justice system in England and Wales June 1995 136 (hereinafter referred to as Woolf report).
[8]Lord Donaldson “Alternative dispute resolution” (1992) 58 Arbitration 102.
[9]De Witt Wijnen, OLO “ADR, the civil law approach” (1995) 61 Arbitration 38.
[10]See eg Butler & Finsen 16-19 regarding the mini-trial.
[11]See generally Bernstein & Wood 13-16.
[12]1994 1 SA 837 C.
[13]Woolf report 139 paras 16-21.
[14]Beldham LJ (1992) 58 Arbitration 178.
[15]Woolf report para 10.
[16]Jefferies, R “Alternative dispute resolution and the Ombudsman” (1996) 62 Arbitration 67.
[17]Cohen, T “ The insurance ombudsman - an alternative dispute resolution forum for the insurance industry” (1996) 8 SA Merc LJ 252.
[18]Luk, JWK & Wijedoru, B “ A proposal for a more effective and efficient resolution system for international construction contracts” (1993) 59 Arbitration 100; Butler DW “Dispute resolution procedures” in Loots PC (ed) Construction law and related issues Juta 1995 1009; Luk, JWK & Wong, WT “The current practice of dispute resolution adviser(DRA) in the construction industry of Hong Kong” (1995) 61 Arbitration 253(hereinafter referred to as Luk & Wong).
[19]Luk & Wong 254.
[20]Counsel Nov/Dec 1994.
[21]The principle aim of the proposed new Rule is to reduce delays in bringing matters to trial. It comprises a system whereby parties and their representatives can agree to set their own timetable but will ,in the normal course, have to complete their preparations for trial within a prescribed time. It includes a procedure whereby a Default Hearing before a Judge will be called by the Registrar whenever a party fails to comply with the Court’s directions. The Judge will endeavour to get the parties back on track. The matter may, however, be taken out of the main stream and placed on the ‘Not Ready List’ until preparations for trial have reached a satisfactory stage. The Rule also provides for the exchange of witness summaries and provisions aimed at limiting time consuming and unnecessarily expensive expert evidence. When the matter is ready for trial, the Registrar will allocate a trial date and convene a Final Conference where a Judge will ensure that the matter is ready for hearing and explore the possibility of a settlement of the whole matter or some of the issues.
[22]Van der Merwe, H “ Overview of the South African Experience” Community Mediation Update Newsletter of the Community Dispute Resolution Trust April 1995(hereinafter referred to as Van der Merwe).
[23]Van der Merwe 2.
[24]Act 120 of 1993.
[25]Mncadi & Citabatwa “Exploring community justice” Imbizo Community Peace Foundation Issue 1 1996.
[26]Van der Merwe, H & Mbebe, M Informal justice: The Alexandra justice centre and the future of interpersonal dispute resolution CALS Working paper 21 Febr 1994.
[27] Northern Territory Law Reform Committee Mediation and the criminal justice system Final Report No 17A March 1996.
[28]Project 82.
[29]Project 106.
[30] Project 100.
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