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Kenny Verhage & Associates Attorneys & Conveyancers
Tel: 031-566 2655
Fax: 031566 4264
E-mail: law@kenver.co.za

DISCLAIMER

Articles

Alternative Dispute Resolution (ADR)

At Kenny Verhage & Associates we offer Mediation, Arbitration & Negotiation as alternative methods of dispute resolution. In a modern world where legal costs are high and the process is usually protracted and costly, alternative forms of dispute resolution are becoming more and more popular and can be a very attractive alternative to litigation.

 

New legislation has recognized that the parties to a dispute definitely benefit when they are able to speak directly to one another. More and more companies are also accepting that they have a fiduciary duty to resolve disputes in alternative ways.

 

At Kenny Verhage & Associates we assist our clients to resolve their disputes quickly, efficiently and cost effectively by using ADR.

 

Litigation

 

Although Litigated Court Actions definitely have their place in our society, they are generally protracted, acrimonious and costly. The adversarial nature of litigation dictates that there can only ever be one winner and this usually destroys any prospect the parties to an action may have of preserving their relationship. Litigation generally exacts a heavy personal and financial toll on both parties. Mediation, negotiation and arbitration on the other hand are generally accepted as being attractive alternative methods of resolving most disputes as it is consensual, private and usually a quicker and more affordable alternative to Court litigation.

 

Arbitration

 

Arbitration is a private judicial hearing with an outcome that binds the parties and puts an end to the dispute between them. It focuses on the rights and duties of the parties who are more in control of the action. The parties choose their own arbitrator (who is usually a specialist on the subject matter of the dispute) to determine their dispute with or without the right of appeal. The arbitration is then heard privately at a time and place agreed upon by the parties. The venue is usually comfortable, convenient and most suited to their needs.

 

It is not possible to arbitrate divorces, criminal matters, issues involving status or the liquidation of a company.

 

Arbitration most commonly used to resolve disputes which involve technical or specialist matters and has become the preferred method of resolving construction and engineering disputes, as well as disputes involving complex trade or financial arrangements.

 

Mediation

 

Mediation on the other hand is a voluntary, informal, flexible, non-adversarial, private and confidential method of resolving disputes. It is more cost effective and expedient and less harrowing than a court battle. The outcome is decided by the parties directly involved in the matter rather than by an outsider. Mediation focuses on the interests and needs of the parties to the dispute which generally results in the parties reconciling their differences and preserving their relationships, particularly where they have ongoing mutual interests to pursue. Mediation is less adversarial and stressful and more flexible than a forum governed by rules and time limits. Mediation becomes a binding process once the parties reach consensus and conclude a written contract which contains the terms of their agreement. A mediated agreement usually has a greater chance of sustainability and success as it has the full commitment of the parties. The main advantage to the parties is that they arrive at a win-win solution with Mediation whereas in litigation and arbitration a win-lose outcome is achieved. The process is also not a bar to litigation as the parties retain the right to terminate the Mediation at any time and can institute legal proceedings against each other out of any competent Court if the Mediation process fails.

 

Negotiation

 

Negotiation is less structured and generally takes longer to conclude than the other forms of ADR. It is a common method of resolving disputes in areas such as labour and sport. The facilitator prepares a memorandum of agreement which contains all of the points agreed to by the parties who agree to be bound by it. If there are unresolved issues, the parties are free to pursue them by way of Court litigation.

 

Kenny Verhage & Associates is an accredited member of The Arbitration Foundation of Southern Africa (AFSA) which administers all types of alternative dispute resolution and maintains a panel of experts from which mediators, arbitrators and negotiators are appointed.

 

At Kenny Verhage and Associates we specialise in Alternative Dispute Resolution in the following areas –


• Commercial
• Property/Construction /Industry
• Matrimonial/Family Law
• Labour
• Financial
• Hospitality