AGF 420
Alternative Dispute Resolution
University of Pretoria
,STUDY UNIT 1 – GENERAL INTRODUCTION TO ADR, OVERVIEW OF STUDY FIELD AND TERMINOLOGY
What is ADR
• Alternative Dispute Resolution
• ADR is an alternative to litigation involving a selection or design of process best suited for the
particular dispute and also suited for the parties involved
Goals for ADR
• Relieving court congestion – decreasing the amount of cases that go to court
• Preventing unnecessary costs and delays
• Involving the parties to the dispute resolution process – parties feel included
• Improving and facilitating access to justice
• To provide more effective dispute resolution
Categories of Dispute Resolution
• Informal discussion and problem solving
• Negotiation – more structured – the parties have a bargaining interest
• Mediation – involving a third party to assist the parties to reach a settlement or make a deal – the
mediator does NOT make a decision but merely assists the parties to make a decision
• Conciliation – the conciliator makes a formal certificate of recommendation to the parties to settle
the dispute
• Mini-trial – each party presents a summary and chaired by an impartial third party
Selecting the process and design
• Determined by the following characteristics:
o Formalities
▪ The rules that govern the particular ADR process – a party’s decision in selecting a
specific ADR process will be affected by the formalities that they will be expected to
comply with
o Costs
▪ Cost of paying the mediator, conciliator or arbitrator and the costs for the forum
o Delays associated therewith
▪ The delays associated with complying with certain formalities and paying the costs
o Privacy associated with the process
▪ The details of the process are only kept between the parties involved – it is private –
any decision reached is NOT published to the public or on a public platform
o Presence of a third party
▪ The presence of a third party with expertise and the costs involved with such
o Type of decision that will result and the implications of that decision
o Degree of choice and influence exercised by the parties
▪ The parties decision on which ADR to process to select will depend on how much
control they wish to have in the process and settlement and its contents
o Degree of knowledge and understanding of the parties of the procedures
1
, o Amount of pressure in relation to the dispute
▪ Is it a dispute that needs to be solved as soon as possible?
▪ Is there pressure to resolve the dispute quickly or by a deadline?
▪ Is there pressure to achieve a specific result because of the implications of the
dispute?
Degree of control exercised by the parties
• Negotiation ➔ Total control by the parties
• Mediation ➔ Mediator controls the process, parties control the settlement, mediator
merely makes suggestions in order for the parties to reach a settlement
• Conciliation ➔ Same as mediation except conciliator controls the contents of the
settlement
• Arbitration ➔ Parties choose the procedures. The award is binding between the
parties and regulated by the arbitration agreement
Advantages and Disadvantages of ADR vs Litigation
Advantages Disadvantages
• Lower expenses incurred by the parties • The solution is NOT guaranteed and may
• Easy access and speedy resolution NOT work for the parties
• Confidential results • Arbitration decisions are final without the
• Preservation of relationships option to appeal against the decision of the
• Finality (in certain circumstances) arbitrator (can also be seen as an
• Decisions are accepted by the parties as advantage because it means that the
they are actively involved in the solution- process is more final, and the process
finding CANNOT be delayed to appeal a decision)
• Experts can preside/assist the ADR process • Participation could be regarded as
• Parties determine procedures weakness (Participation can be an
o Sometimes certain forums have two advantage or disadvantage depending on
types of rules – expedited and long one’s perspective)
form rules – so the parties can
decide how informal or how formal
they want their proceedings to be
2
, NEGOTIATION & CONCILIATION
STUDY UNIT 2.1 – AN OVERVIEW OF NEGOTIATION AND CONFLICT
Concept of conflict
• Conflict is an expressed struggle between at least two interdependent parties who perceive
incompatible goals, scarce resources, and interference from others in achieving their goals.
• The core aspect of all disputes is conflict.
• Conflict, to a large extent, determines our attitude towards a dispute and our approach in dealing
with it.
• Conflict occurs amongst 3 dimensions:
o Cognitive – expressed by perceptions
▪ Conflict as a perception
• Perceptions are the belief that one’s needs, interests, wants or values are
incompatible with those of someone else.
• If only one person in a whole group of people has a different perception,
there is a great chance that the rest of the group will experience conflict.
o Emotional – expressed by feelings
▪ Conflict as feelings
• Feelings – it is any form of emotional reaction / interaction such as fear,
anger, bitterness etc.
o Behaviour – expressed by actions
▪ Conflict as actions
• Actions – what we do to express these feelings / perceptions
What causes conflict
• The above dimensions occurs on a daily basis and forms part of our human needs.
• Therefore, human needs can be seen as the centre of all conflict.
• People engage in conflict because they have different needs and they believe that their needs are
inconsistent with those of others.
• Human needs are influenced by several factors:
o Communication
o Emotions
o Values
o History
o Structures
Moore’s five sources of conflict
1. Interest conflict
o The most common type of conflict arising from different interests or what is perceived as
different interests
o Example: Pete is furious because Alan forgot to give him the quarterly student figures in
time for the budget meeting. Pete felt foolish in the meeting and blames Alan. Pete is the
Team Manager and he appears behind schedule for NOT presenting the figures for the
budget meeting. Pete is a perfectionist. Whilst Alan is forgetful and is going through marital
3
Alternative Dispute Resolution
University of Pretoria
,STUDY UNIT 1 – GENERAL INTRODUCTION TO ADR, OVERVIEW OF STUDY FIELD AND TERMINOLOGY
What is ADR
• Alternative Dispute Resolution
• ADR is an alternative to litigation involving a selection or design of process best suited for the
particular dispute and also suited for the parties involved
Goals for ADR
• Relieving court congestion – decreasing the amount of cases that go to court
• Preventing unnecessary costs and delays
• Involving the parties to the dispute resolution process – parties feel included
• Improving and facilitating access to justice
• To provide more effective dispute resolution
Categories of Dispute Resolution
• Informal discussion and problem solving
• Negotiation – more structured – the parties have a bargaining interest
• Mediation – involving a third party to assist the parties to reach a settlement or make a deal – the
mediator does NOT make a decision but merely assists the parties to make a decision
• Conciliation – the conciliator makes a formal certificate of recommendation to the parties to settle
the dispute
• Mini-trial – each party presents a summary and chaired by an impartial third party
Selecting the process and design
• Determined by the following characteristics:
o Formalities
▪ The rules that govern the particular ADR process – a party’s decision in selecting a
specific ADR process will be affected by the formalities that they will be expected to
comply with
o Costs
▪ Cost of paying the mediator, conciliator or arbitrator and the costs for the forum
o Delays associated therewith
▪ The delays associated with complying with certain formalities and paying the costs
o Privacy associated with the process
▪ The details of the process are only kept between the parties involved – it is private –
any decision reached is NOT published to the public or on a public platform
o Presence of a third party
▪ The presence of a third party with expertise and the costs involved with such
o Type of decision that will result and the implications of that decision
o Degree of choice and influence exercised by the parties
▪ The parties decision on which ADR to process to select will depend on how much
control they wish to have in the process and settlement and its contents
o Degree of knowledge and understanding of the parties of the procedures
1
, o Amount of pressure in relation to the dispute
▪ Is it a dispute that needs to be solved as soon as possible?
▪ Is there pressure to resolve the dispute quickly or by a deadline?
▪ Is there pressure to achieve a specific result because of the implications of the
dispute?
Degree of control exercised by the parties
• Negotiation ➔ Total control by the parties
• Mediation ➔ Mediator controls the process, parties control the settlement, mediator
merely makes suggestions in order for the parties to reach a settlement
• Conciliation ➔ Same as mediation except conciliator controls the contents of the
settlement
• Arbitration ➔ Parties choose the procedures. The award is binding between the
parties and regulated by the arbitration agreement
Advantages and Disadvantages of ADR vs Litigation
Advantages Disadvantages
• Lower expenses incurred by the parties • The solution is NOT guaranteed and may
• Easy access and speedy resolution NOT work for the parties
• Confidential results • Arbitration decisions are final without the
• Preservation of relationships option to appeal against the decision of the
• Finality (in certain circumstances) arbitrator (can also be seen as an
• Decisions are accepted by the parties as advantage because it means that the
they are actively involved in the solution- process is more final, and the process
finding CANNOT be delayed to appeal a decision)
• Experts can preside/assist the ADR process • Participation could be regarded as
• Parties determine procedures weakness (Participation can be an
o Sometimes certain forums have two advantage or disadvantage depending on
types of rules – expedited and long one’s perspective)
form rules – so the parties can
decide how informal or how formal
they want their proceedings to be
2
, NEGOTIATION & CONCILIATION
STUDY UNIT 2.1 – AN OVERVIEW OF NEGOTIATION AND CONFLICT
Concept of conflict
• Conflict is an expressed struggle between at least two interdependent parties who perceive
incompatible goals, scarce resources, and interference from others in achieving their goals.
• The core aspect of all disputes is conflict.
• Conflict, to a large extent, determines our attitude towards a dispute and our approach in dealing
with it.
• Conflict occurs amongst 3 dimensions:
o Cognitive – expressed by perceptions
▪ Conflict as a perception
• Perceptions are the belief that one’s needs, interests, wants or values are
incompatible with those of someone else.
• If only one person in a whole group of people has a different perception,
there is a great chance that the rest of the group will experience conflict.
o Emotional – expressed by feelings
▪ Conflict as feelings
• Feelings – it is any form of emotional reaction / interaction such as fear,
anger, bitterness etc.
o Behaviour – expressed by actions
▪ Conflict as actions
• Actions – what we do to express these feelings / perceptions
What causes conflict
• The above dimensions occurs on a daily basis and forms part of our human needs.
• Therefore, human needs can be seen as the centre of all conflict.
• People engage in conflict because they have different needs and they believe that their needs are
inconsistent with those of others.
• Human needs are influenced by several factors:
o Communication
o Emotions
o Values
o History
o Structures
Moore’s five sources of conflict
1. Interest conflict
o The most common type of conflict arising from different interests or what is perceived as
different interests
o Example: Pete is furious because Alan forgot to give him the quarterly student figures in
time for the budget meeting. Pete felt foolish in the meeting and blames Alan. Pete is the
Team Manager and he appears behind schedule for NOT presenting the figures for the
budget meeting. Pete is a perfectionist. Whilst Alan is forgetful and is going through marital
3
