Alternative Dispute Resolution Guidelines: Good Law Project REPORT II chaired by Prof Mervyn King SC

Although the state is the repository of the judicial system, and rightly so, the need for a somewhat quicker, more flexible and more specialised process is often called for. It is from this insight that the idea of alternative dispute resolution has arisen.The “alternative” in the name shows that the process stands in contradistinction to the “standard” dispute resolution process, namely the state sponsored adversarial court system. A hallmark of every modern state is a proliferation of alternative dispute resolution procedures. One of the great advances of the modern state is self-regulation, whereby industries create adjudicative processes and procedures through which recurring problems may be dealt with expeditiously and by an expert so as to protect the goodwill of the industry.Apart from ombudsman schemes, the legislature has introduced specialist tribunals of all sorts and flavours throughout commerce and industry. Quite apart from these tribunals are bodies that administer arbitrations between litigants who would normally have taken their disputes to the High Court.It is clear that alternative dispute resolution is not only here to stay, but that it has a bright future. The benefits of an alternative dispute resolution system are legion.However, no system of alternative dispute resolution is the judicial equivalent to Eldorado. There are major problems with alternative dispute resolution procedures where poorly understood processes are followed by adjudicators with poor training. The purpose of this report is to provide guidelines that will promote best practices among ADR practitioners and the highest standards for ADR in South Africa. The guidelines are intended to define the basic requirements of a fair process to be observed within the context of ADR processes in order to ensure access to justice via alternative means. In particular, the fundamental requirements of a fair process – namely the application of substantive law in the determination of the outcome of a dispute and the observance of basic rules of fair procedure in gathering facts and evidence relevant to the dispute – are set out in these guidelines. These guidelines, when applied, are intended to ensure the success of the ADR process in delivering justice.It is recommended that the guidelines provided for in this report should always be considered when an ADR process is designed, determined or implemented for the purposes of dispute resolution. Notwithstanding and consistent with the principle of party autonomy, it is acknowledged and accepted that parties on equal footing who are completely free to determine an ADR process for purposes of resolving a dispute between themselves, may by agreement, choose freely to incorporate or depart from any of the basic requirements of justice or fair legal process as set out in these guidelines or elsewhere.