Mediation and Arbitration
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Business owners need to be aware of all the options and implications thereof, at their disposal when resolving disputes – when they start their business. As its future survival could depend on the resolution of such disputes.
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In Zingwazi Contractors CC v Eastern Cape Department of Human Settlements and Others [2021] 4 All SA 299 (ECG), effect of a counterapplication on a determination order in a building contract dispute which provided for a binding resolution by way of settlement, adjudication, arbitration, and mediation.
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In Samancor Holdings (Pty) Ltd and Others v Samancor Chrome Holdings (Pty) Ltd and Another [2021] 3 All SA 342 (SCA), s 8 of the Arbitration Act allows for the extension of a time-barred period for initiating arbitration proceedings, where a court is of the opinion that in the circumstances of the case, undue hardship would otherwise be caused.
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South African courts are willing to enforce any valid foreign arbitral award involving international or cross-border commercial disputes, as regulated by the International Arbitration Act 15 of 2017, on the same basis as a High Court judgment.
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In this article, we explore new areas of practice, with reference to the practice area of Dispute Resolution found in the Lexis Practical Guidance Practice module.
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Multi-tiered dispute settlement and the introduction of Rule 41A is a significant evolution of South Africa’s legal system
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The new normal - A pandemic presenting us with an imperative to manage commercial disputes effectively. Appropriate, adaptive dispute resolution broadens the range of services a legal practitioner can deliver with the result that he/she can address a wider range of client’s needs. This is particularly important in this era of a ‘disrupted normal’. Reliance on legal mechanisms under these circumstances is akin to using a blunt instrument to perform delicate surgery.
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Representing and advising clients in a mediation process – a new practice area for legal representatives. Mediation Advocacy is the technique of strategically presenting a client’s position, needs and interests in a non-adversarial way, and in recognizing that the negotiated outcome to a dispute is usually more flexible, satisfying and sustainable than an order imposed by a court or other tribunal.
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Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. In this respect it is often seen as being the online equivalent of Alternative dispute resolution. However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.
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COVID-19 has put the new Mediation Rule 41A of the High Court at the centre of our legal system. Attorneys are seeing their world turn upside down by social distancing and many are scrambling to understand how Rule 41A and online mediation will help them resolve their clients’ cases. However, it creates a problem-solving environment where a skilful and experienced mediator can help attorneys settle their clients’ cases or limit the issues in dispute.
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Covid-19: Mediation between landlords and tenants – a critical tool now? Using mediation to resolve disputes could prove to be more efficient in the long term, and our economy might depend on it.
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COVID-19 is an epoch-making opportunity to revamp our entire out-dated and adversarial civil procedure so that it is more in line with the principles of Ubuntu and the Constitution. At the same time we can massively expand access to justice in the digital world to all, including the poor, by using platforms such as Zoom, Microsoft Teams and Skype.
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Meyers and Rule 41A: Some thoughts on the Protagoras Paradox and the appropriate resolution of medical negligence matters - complex medical facts must be weighed against the background of challenging legal principles and they often depend for their outcome on fine distinctions which make the result of such matters uncertain and unpredictable, which is why the alternative of mediating such disputes is worth serious consideration.
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Legal practitioners are creatures of tradition and certainty. They prefer all rules to be codified and all legislation to be clear. They yearn for certainty and frown upon ambiguity within contracts, laws and especially legal proceedings. Thus there is a call for the codification of video conferencing, through video links, within the Uniform Rules of Court.[2]
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Over 80% of South African legal practices are sole practitioners.