The use of the ICC Mediation Rules in resolving South African commercial disputes
Vosloo, Patrick Heinrich
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Alternative dispute resolution (ADR) is the collective name given to several alternative methods when resolving disputes between parties without having to litigate there on. One of the most commonly used ADR methods is mediation. It involves the use of a neutral third party who encourages and facilitates the proceedings in an attempt to find a solution to the dispute. Mediation has numerous advantages. The parties control the process (which includes the appointment of the mediator, applicable timeframe, where the mediation is to be held and the costs of the mediation) as well as the outcome thereof. The mediation process can also assist parties to acquire a better understanding of each other’s needs and interests so that they may look for a solution which accommodates these needs and interests as far as possible. This is of great importance when resolving disputes arising in the commercial sector. The reason can be contributed to the financial implications that may occur in commercial disputes as well as the parties’ interests. Mediation can be a particularly useful tool when the parties in dispute have an on-going relationship (such as a joint venture or long-term supply contracts) as it helps maintain good relations between them. Mediation differs from other ADR methods. Firstly, mediation is one of the few ADR methods that are not regulated by statute. This position however is slowly changing. In South Africa, for example, there has recently been the introduction of the Court Based Mediation Rules (Rules). These rules regulate the mediation process. The International Chamber of Commerce (ICC) introduced the ICC Mediation Rules (mediation rules). These became operational as from the first of January 2014. The mediation rules provide for a flexible procedure aimed at achieving a negotiated settlement with the help of a neutral facilitator the mediation rules are applicable before any litigation between the parties has commenced. The Mediation Rules reflect modern practices. They also set clear parameters for the conduct of proceedings whilst recognizing and maintaining the need for flexibility. Anyone can use ICC mediation rules, whether a company, state, state entity, international organization or individual. Membership, no affiliation to the ICC, is required in order to be able to make use of the mediation rules and services. Secondly, unlike arbitration, adjudication and litigation, the neutral, third party, namely the mediator does not make a final and binding decision. In fact, the mediator does not make any decision in respect of the resolution of the dispute but instead facilitates the process. Furthermore, certain ADR methods such as arbitration for example are time consuming and costly especially in South Africa, thus defeating one of the main objectives of ADR. These delays are costly for the commercial sector. Mediation could, therefore, be seen as a viable option, particularly when resolving commercial disputes.
- Law