There are several merits that influence the favourable use of ADR as a dispute
settlement mechanism available to labour disputes.457A review of literature revealed a
number of distinct advantages accruing to disputants who elect to use an informal ADR process rather than court litigation as a formal process for dispute resolution
which are reviewed below.458
First, ADR processes have “the effect of translating a legal dispute into an expression of the personal needs of disputants thus converting a rights based dispute into an
453 Woodard (1997) 10 454 Ibid
455 Ury Must We Fight? From the battlefield to the schoolyard – A new perspective on violent conflict and its prevention (2002) 40 “‘When a serious problem arose everyone concerned was sat down – all
the men and women alike – they then talked, and they talked and they talked. Each person afforded a chance to have his/her say. It may have taken several days (two, three or even more) rested on the nature of bone of contention. Such inclusive and open dialogue ensued until the dispute was literally talked out to its conclusive resolution.455
456 Ibid
457 Cassim et al. (2013) 50
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interest based problem.”459 ADR possesses enable the disputants to exercise
ownership over the process of dispute resolution through selecting the appropriate process, framing the issues in dispute and finally establishing standards for its
resolution and take responsibility for the outcome.460 It means, once a dispute
transform rights based to interest based, the relationship between parties becomes the focal point of contestation and the result is its preservation.
Second, ADR processes are private processes. This allows disputants to settle their differences without having to divulge personal or confidential information, which would
happen in a public trial.461The exception is in the case of court ordered or annexed
mediation or arbitration.462This advantage is corroborated by Justice Mohammed463 in
a commission of enquiry about ADR in RSA who asserted that ‘ADR practices like negotiation and mediation comprises private decision making by the blocs in contention themselves while arbitration involves adjudication by a third party and the
proceedings in both cases remain private.464
Third, ADR processes are able to address the material issues and interests of the parties in the dispute and achieve the avoidance of aggressive bargaining about the legal rights of parties.465
Fourth, the purpose of ADR is to achieve settlement that is mutually beneficial based on consonance of the disputants. This is particularly true in regard to consensual processes such as negotiation, mediation, facilitation, the mini-trial and
arbitration/mediation.466 The chief object of these processes is to reach agreements on
integrity that the parties will uphold because the agreements serve their various interests. The presumption is that parties will take responsibility for their agreements
and respect them.467This ought to lead to a higher level of voluntary compliance than
459 Cassim et al. (2013) 51 460 Ibid 461 Ibid 462 Ibid 463 Mohammed et al. (1997) 18 464 Ibid 465 Cassim et al. (2013) 51 466 Ibid 467 Ibid
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is the case with compulsory court orders, which litigants may resist.468 In the case of
arbitration approaches such as expedited arbitration, documents-only arbitration, final- offer arbitration and med/arb, the final and binding arbitral award is founded on the
disputants agreements to be bound thereby.469
Fifth, the thrust of ADR is the future relationship between the parties involved rather than focus on past wrongs and the consequent attribution of blame which is the chief object of court litigation.470 ADR processes are therefore best suited to resolving disputes in situations where disputants have in mind a long term relationship with each
other, for example, company directors or a divorced couples.471 ADR has the
advantage of preserving relationships that are important to the parties.472 Arguably,
ADR can increase satisfaction of disputants with the outcome.473It is therefore strongly
recommended that ADR is used (a) if existing judicial processes engender excessive costs, lengthy delays and limited access undermining user satisfaction; (b) cultural norms are inclined towards reconciliation and relationships over winning disputes; (c) considerations of equity favour flexibility to yield outcomes that are more satisfactory to the parties; (d) low rates of compliance with strict rule of procedures typified in court judgments (or a high rate of enforcement actions necessitate systems that maximise chances for voluntary compliance; (e) the legal system tends to be non-responsible to
local conditions or local conditions tends to vary.474
Sixth, efficient methods for settling issues out of court is characterised by ADR processes which is a cost saving alternative to both parties and the State. The disputing parties save on the costs associated with Court litigation owing to swift and effectual resolution of the dispute, while the saving of court time and the reduction in court administration benefit the State.475 This element has been a major source of contention given that many cases resolved through ADR do not end with success and have to be committed to courts casting down perception of whether ADR is in fact time
468 Cassim et al. (2013) 51 469 Ibid 470 Ibid 471 Ibid 472 Wiese (2016) 2 473 Brown et al. (1998) 10 474 Ibid 12
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and cost saving as alleged.476 There are also factors that disfavour ADR especially
when (a) cultural norms tend to towards formal as well as deterministic solutions; and (b) cultural norms tend to be discriminatory or biased which would only be perpetuated
than curtailed in the ADR system.477
Seventh, ADR heightens access to justice for disadvantaged groups which is the case in many less developed countries like Botswana, RSA and Zimbabwe under review in
this study.478The need to pay the registration and presentation fees necessary to enter
the formal legal system often inhibit many groups who simply cannot afford it.479Owing
to excessive costs associated with formal dispute resolution for many people in
developing countries many would favour a less costly alternative.480Pursuant to this
argument, it is reasonable to use ADR if (a) reliance on formal court systems engenders disbursements in resources often unavailable to large sections of the population; (b) formal court systems tend to be biased against the weak, poor, women, minorities and other groups; (c) illiteracy often inhibit large pockets of the population from resort to formal court systems; and (d) distance from the courts impairs effective
use for persons in rural communities, for instance.481