JFKS is proud to be 1 of only 4 private agencies in South Africa that are accredited by the CCMA to perform dispute resolution functions in terms of the Labour Relations Act 66 of 1995 (the LRA)

Facilitation, Mediation & Arbitration services

Alternative dispute resolution (ADR)  includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party. 

ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type before permitting the parties' cases to be tried. 

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the fact that ADR imposes fewer costs than litigation, a preference for confidentiality and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. 

JFKS works with numerous accredited mediators and arbitrators who specialises in a wide range of fields including labour law, commercial law, family law and community disputes. A list of suggested facilitators, mediators or arbitrators can be provided in accordance with the expertise required.

Benefits

  • Suitability for multi-party disputes
  • Flexibility of procedure - the process is determined and controlled by the parties to the dispute
  • Lower costs
  • Less complexity ("less is more")
  • Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
  • Likelihood and speed of settlements
  • Practical solutions tailored to parties’ interests and needs (not rights and wants,as they may perceive them)
  • Durability of agreements
  • Confidentiality
  • The preservation of relationships and the preservation of reputations


Facilitation


Facilitation concerns itself with all the tasks needed to run a 

productive and impartial meeting. Facilitation serves the needs of any group who are meeting with a common purpose, whether it be making a decision, solving a problem, or simply exchanging ideas and information. 

 

The role of the facilitator

  • monitor the agenda
  • keep time
  • manage the group process
  • encourage participation from all attendees
  • help participants understand different points of view
  • foster solutions that incorporate diverse points of view
  • manage participant behaviour
  • create a safe environment
  • teach new thinking skills and facilitate structured thinking activities
  • record (with an agreed phraseology) agreements. They may also note unresolved issues for later debate.

Mediation


In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.

Experience shows that intellectual property litigation often ends in settlement. Mediation is an efficient and cost-effective way of achieving that result while preserving, and at times even enhancing, the relationship of the parties. 

The principal characteristics of mediation are:

  • Mediation is a non-binding procedure controlled by the parties

A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. 

Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator. 

  • Mediation is a confidential procedure

In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone The existence and outcome of the mediation are also confidential. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity. 

  • Mediation is an interest-based procedure

In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In a mediation the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct.

When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

Arbitration

Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties to a dispute with a choice other than litigation. 

Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator. The parties agree in advance to comply with the arbitrator's award and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator's decision is final and binding and enforceable through the courts.

Advantages of arbitration

  • When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot "choose the judge" in litigation)
  • Arbitration is often faster than litigation in court 
  • Arbitration can be cheaper and more flexible for businesses
  • Arbitration proceedings and an arbitral award are generally non-public, and can be made confidential
  • In arbitration proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
  • Arbitration awards are generally easy to enforce