WHAT IS ARBITRATION?

Arbitration is a form of alternative dispute resolution very similar to trial proceedings. It is the private, adjudicative determination of a dispute, by an independent third party. An arbitration hearing may involve the use of an individual arbitrator or a panel of arbitrators and unlike mediation, is binding upon the parties.

RULES OF COMMERCIAL ARBITRATION
Arbitrations are governed by the Arbitration Act 42 of 1965. Once the parties agree to have a dispute arbitrated, an arbitration agreement is signed which sets out the rules by which the arbitration will be governed.

ENFORCEMENT
An arbitration award is binding on the parties to the arbitration. An award may, however, also be made an order of court, in which case, the arbitration award will then be enforced in the usual manner that court judgements are enforced.


ADVANTAGES OF ARBITRATION

1.
It is an efficient method of access to justice;
Arbitration can usually be heard sooner than it takes for court proceedings to be heard. The arbitration hearing is usually shorter in length, and the preparation work less demanding.
2.
Appointment of the arbitrator
When a dispute involves technical matters, it is often useful to arbitrate the dispute as arbitration allows for the parties to appoint the arbitrator. This ensures that the person who arbitrates the dispute is experienced in the field to which the arbitration relates.
3.
Time Saving
Currently, the waiting period for a trial date can vary between fourteen months to two years from the date that pleadings close. Arbitration however, does not have this time delay. Once pleadings have closed, the arbitrator and the parties can set the matter down for a hearing at any time that is convenient.
Furthermore, the fact that the arbitrator and the parties choose the dates of the hearing (as opposed to merely having a date allocated) ensures that the parties’ legal teams are available to argue our matter. There is no such guarantee when trial dates are allocated by the courts.
4.
Confidentiality
Disputes that are heard by the courts are a matter of public record. The court files, pleadings and any court documents can be accessed by any member of the public, including the press.
Disputes that are arbitrated however bear the advantage of being completely private and confidential. The arbitration papers and order are not public documents and parties can ensure their privacy by insisting on a confidentiality clause in their arbitration agreement.
5.
Flexibility
Court procedures are largely and as a whole, inflexible. Parties to arbitration, however, may determine the procedures of the arbitration by mutual consent.
6.
Awards
Arbitration awards are final. If the parties agree on an appeal procedure, arbitration awards given by one arbitrator may be appealed to a bench of three arbitrators. Even if a matter is appealed, the appeal can be heard as soon as a date can be set by the arbitrators and the parties and the appeal can be dealt with expeditiously.

CONCLUSION
The aim of arbitration is to provide an alternative forum where the dispute may be adjudicated allowing the parties some control over who adjudicates the matter and the time periods in which the matter will be heard.

The Mediation Centre provides an accredited panel of Arbitrators to choose from.

The views expressed by authors are their own and do not necessarily reflect the views of any organisation or body of persons.