Command ADR Processes

As opposed to consensual process the command process is one by which the outcome of the disputing process is in a form of judgment that is imposed on the parties

or litigants (whichever the case may be) by the judiciary officer.412_{The parties are not}

involved in the outcome of the matter as they get an independent person to listen to

their dispute and give judgment in the end.413 _{The net result of this process is that the}

decision (outcome) is enforced on the parties by sanctions of the state, for example, judgment is enforced by way of execution proceedings. Litigation through the courts

and arbitration are examples of command processes in ADR system.414

2.3.2.1 Arbitration as an ADR process

Arbitration also enjoys preference in literature as an ADR constitute elements though

it would appear that it is the less favourite approach to conciliation and mediation.415

The concept arbitration is not without challenges pertaining to definition, philosophical

bearing as well as process.416_{There is no single definition that is agreed upon among}

its proponents. Some scholars have tended to provide what they term a general

definition,417_{followed by a legal definition.}418_{This does not help to resolve the lack of a}

universally agreed definition; hence the concept remains complex to define.419

Merriem-Webster dictionary420 _{of the English language, for instance, provides what}

412 _{Cassim et al. (2013) 39} 413 _Ibid

414 _Ibid

415 _{Zahorka http://www.libertas-institut.com/de/PDF/Mediation.pdf Date of use: 8 March 2016} 416 _{Cassim et al. (2013) 39}

417 _{Merriam-Webster http://www.merriam-webster.com/dictionary/arbitration Date of use: 15 March}

2016

418 _Ibid

419 _{Merriam-Webster http://www.merriam-webster.com/dictionary/arbitration Date of use: 15 March}

2016

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they term the simplest definition of arbitration which states thus ‘a process by which arguments or disagreements between people or groups on both sides are presented to a third person or group who is empowered to reach a decision on their behalf.’ Put differently, arbitration is the “… process in terms of which parties to a dispute reach an agreement to have their matter referred to an independent and impartial third party (the arbitrator) who ought to decide on the matter and in the result make an award which they are to accept as final and binding upon them.”421 _{The legal definition} provides that arbitration is “…the process in terms of which an unresolved conflict, grievance or dispute between labour and management is decided by presenting it to a third party or panel outside of the court system who is considered as impartial for a

decision that may or may not be binding.’422 _{An industrial psychology perspective of}

arbitration states that ‘arbitration entails the appointment of an impartial third party,

who will use quasi-judicial processes and act as the decision maker in a dispute.423

What is common to the above definitions is the fact of a deadlock in the form of a dispute, argument or disagreement which has failed to get resolve among the disputants, hence resort to an independent arbitrator. The third party who the practice of arbitration obliges to be independent and impartial is required to make a decision

or what is termed424 ‘make an award’. Lotter and Mosime425_{appear to be ascribing an}

adjudication tag by stating, ‘arbitration is a form of adjudication and should therefore be distinguished from mediation. In the case of mediation, the third party does not

make a binding award,”426 _{whereas arbitration is a formal process empowering the third}

party to make a decision to bring the dispute to a resolution.427 _{Each party presents}

evidence and is given an opportunity to challenge the evidence of the other. Both disputants try to persuade and convince the arbitrator of the merits of their cases in relation to the dispute. Arbitration is more flexible and simple, less time consuming

with fewer legal intricacies and therefore cheaper than adjudication.428 _{As to its efficacy}

in resolving disputes arbitration is recommended for its ability to settle disputes and

421 _{Lotter and Mosime (1993) 2, See also Patelia and Chicktay (2014) 30 and Wiese (2016) 7} 422 _Ibid

423 _{Coetzee and Schreuder (2010) 470} 424 _{Lotter and Mosime (1993) 2,} 425 _Ibid

426 _Ibid

427 _{Patelia and Chicktay (2014) 30} 428 _Ibid

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enable enforcement.429 _{In the South African case, for instance the 2002 Labour}

Relations Act amendment made an arbitration award enforceable through certification by the Director of CCMA without need to go to court to make the award an order of

court as was previously the case.430_{This development tends to enhance the efficacy}

of ADR as a dispute resolution process unlike negotiation, mediation and conciliation. Arbitration also has the advantage of being a private and confidential process which

is not the case with court proceedings.431_{Arbitration can resolve disputes quicker than}

court proceedings. Arbitrators appointed are usually experts in the field of the dispute whereas a judge of court is usually not. An arbitration decision is final whereas the

decision of court is subject to appeal and review in certain respects.432 _{The arbitration}

process is not without its own demerits. The main disadvantage of the use of arbitration as a dispute resolution process is that the parties lose control of the outcome of the

dispute resolution process.433 _{Arbitration does not afford judiciary precedent to its users}

which is only afforded disputants by court litigation, as arbitration awards, in their

nature, do not create precedent.434 _{In instances where parties resort to complex}

arbitration rules the arbitration process can end up being more expensive than

litigation.435 _{In such cases parties will not only need to pay their legal representation,}

but also arbitration fees and their use of a neutral venue.436_{Arbitration is not suitable}

for interest based disputes where parties want to create new rights. In Zimbabwe437

arbitration awards are not automatically binding, but must be made orders of court and

could be discouraged where time is an issue.438_{This study sees that from the forgoing}

there seem to be more disadvantages than advantage of arbitration though it continues to be used to resolve disputes alongside other methods such as conciliation. It is discernible to this study that ADR will have to be developed continually to ensure that selection of each approach is best suited to every situation. This is because interest-based disputes for instance will not be suitable for resolution through arbitration while right based disputes may also not be best resolved through

429 _{Wiese (2016) 7}

430 _{Section 143(3, Act 66 of 1995 (As amended)} 431 _{Wiese (2016) 127}

432 _{Ibid 128} 433 _{Ibid 7}

434 _{Patelia and Chicktay (2014) 71} 435 _Ibid

436 _Ibid

437 _{Section 98 (14), Act of 2003 [Chapter 28:01]} 438 _{Patelia and Chicktay (2014) 71}

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negotiation and mediation. This study is concerned with ascertaining the efficacy of ADR in labour dispute settlement in Botswana, South Africa and Zimbabwe. The use of processes like arbitration from the foregoing analysis can enhance efficacious resolution of disputes. This depends largely on taking initiative to ensure that the correct disputes are resolved using the correct approaches. This is the subject of the next section.

2.3.2.2 Court litigation as a dispute resolution process

Litigation is a dispute resolution process that traditionally runs through the courts. In

South Africa for instance the Constitution of South Africa439_{provides that the judiciary}

authority or arm of government is vested with the resolution of disputes.440 _Litigation

essentially takes place in the court rooms which are open to members of the public who may enter into any court room and watch the proceedings of any case as much

as they wish.441_{The court litigation process starts with a grievance in terms of which}

the aggrieved party asserts a legitimate cause of action in the form of a claim.442 _The

court processes443 _{are detailed, inevitably requiring the pleading stage,}444 _whereat

litigants exchange summons and particulars of claim usually stating the nature of injury sustained and the relief sought, the pleas in reply to summons, notices, discovery of documents, which seek to substantiate and prove their claims.445 _{The strict rules of} evidence are adhered to, to prove claims. The pleading stage often concludes with the

pre-trial procedures such as pretrial conference446_{convened to determine the issues}

in contention to be addressed before the court.447 _{Thereafter a notice of set down is}

issued, leading to trial.448_{Trial is convened before a Magistrate or Judge in open court}

and usually concludes with the issuance of a judgment.449 _{The trial is followed by} another lengthy process of enforcement through the writs, Deputy Sheriffs or

439 _{Act No. 5 of 2005}

440 _{Article 165 (1) Act No. 5 of 2005}

441 _{Agarwal and Owasanoye Alternative Dispute Resolution Methods (2001) 4}

442 _{Nader and Todd (1978) 212, See also Miller & Sarat (1981) 52 and Lippman Law and society (2015)}

212 443 _{Cassim et al. (2013) 39} 444 _{Faris et al. (2011) 47} 445 _{Ibid 81} 446 _{Ibid 72} 447 _{Ibid 81} 448 _{Faris et al. (2011) 82} 449 _{Ibid 86}

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Messengers of Court executing writs of execution upon the losing party and the like

depending on what nature of judgement was entered by the Presiding Officer.450 _Court

litigation may take years before a matter is set down for trial. In many countries, court litigation remains an expensive and tortuous way to enforce a legal right aside from the [inherent] delay, there is the question of rigid [and cumbersome] formality, publicity and corruption [that characterizes] many judicial systems, and in international commercial disputes there is the question of multiple jurisdictions from which the

parties have to decide’451_{(emphasis mine). Litigation is a more aggressive approach}

to dispute resolution, which is often regarded as the last port of call after internal and

ADR processes have failed to resolve industrial conflicts and disputes.452 _{By its nature,}

court litigation as a dispute resolution process tends to be competitive (adversarial), costly and cumbersome often resulting in winners and losers who may not see eye to eye thereafter. In light of the above, ADR on the other hand seeks to offer a more private, less costly, relationship building focus, time saving and more satisfactory process and outcomes giving regard to the interests of both parties. This study is not focused on litigation through courts as a dispute resolution process, hence the scant focus. Litigation may only be referred to where necessary especially when it is appropriate to compare it with ADR. The rest of the discussion focuses on ADR as a dispute resolution approach especially in labour matters, particularly its efficacy.