n South African Law Journal - What should the consequences be of an unreasonable refusal to participate in ADR? : notes

Volume 131, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



Despite mediation and conciliation being provided for in over forty statutes since 1994, a general culture of mediation has yet to take root in South Africa. The South African Law Reform Commission committed considerable resources, from 1997 to 1999, on several reports under its Project 94 on Alternative Dispute Resolution ('ADR'). However, there has been little tangible benefit. The Commission for Conciliation, Mediation and Arbitration ('CCMA') is the only example of institutionalised and successful conciliation practice. The still to be implemented Court-Annexed Mediation Rules of the Magistrates' Courts reflect a retreat from the initial compulsory mediation process to a system of 'voluntary referral'. One wonders if this is to share the same fate as the yet to be repealed Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991, which promised an alternative to civil litigation but which was never implemented. Is it simplistic to conclude that there is insufficient political and professional will to effect a transformation of the ways legal disputes are resolved in South Africa?

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