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2.4 Alternative dispute resolution

In recent years, parties to legal disputes have sought ways in which to settle their disputes, without having to do so in a court of law. Collectively, the manners in which disputes may be resolved without going to a court of law, is called alternative dispute resolution (ADR).

ADR may take many forms. The most used types of ADR are negotiation, mediation and arbitration.

During negotiations, the parties to a dispute try to reach a settlement, through talking to each other. At times, the parties may utilise the services of a facilitator. As a general rule, the negotiated settlement that the parties reach is not enforceable, unless the parties entered into an agreement, usually in writing. Should one of the parties fail to ‘uphold their end of the bargain’, the other party may approach a court, or another appropriate forum, to enforce the agreement.

During mediation, an independent third party, called a mediator, assists the parties to reach their own solution to the dispute. The mediator acts as a go-between to the disputing parties. The parties are assisted to reach a win-win settlement to the dispute. A mediated settlement cannot be enforced in a court of law, unless the parties to the dispute agreed to have this settlement made an order of court.

During arbitration proceedings, an independent third party, called the arbitrator, listens to both sides of the dispute, and makes a final and binding award. An arbitration award cannot be taken on appeal, but it may be taken on review. If the parties’ agreement to arbitrate is a written agreement, the Arbitration Act 42 of 1965 applies. Arbitration is the most formal process of the three types of ADR (Nagel, 2015).

2.5 Legal profession

This unit does not deal with all the types of services that lawyers may render; it only focuses on the traditional careers in the private sector. Reference is also made to a limited number of persons/bodies who are directly involved in litigation. There are a number of important role players in the South African legal system. 

In accordance with the English legal system, South Africa has two main branches of legal practitioners – advocates and attorneys. Traditionally these two professions were seen and treated as completely separate from each other. The Legal Practice Act 28 of 2014 (LPA) restructures the legal profession in South Africa and, among other things, establishes ‘a single unified statutory body to regulate the affairs of all legal practitioners’. Attorneys are traditionally seen as ‘general practitioners’ who, although they are able to litigate, often outsource litigation to advocates, who are traditionally seen to be specialist litigators. 

Traditionally, a member of the public could not approach an advocate directly to appear for them. The individual would have to work through an attorney, who would brief an advocate, to engage the services of an advocate. Once the LPA enters into force, members of the public may engage the services of an advocate directly.

The role and function of the most important role players, excluding attorneys and advocates, in the litigation process, are set out in the following table.

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