Disputes are an inevitable part of life, whether between business partners, family members, or contracting parties. When they escalate beyond informal resolution, the default reaction has traditionally been litigation. Summons is issued, pleadings are exchanged, and the matter proceeds, often slowly, towards trial, with the expectation that a presiding officer will ultimately decide who is right and who is wrong.
For many years, that was simply how serious disputes were resolved. However, congested court rolls now mean that trial dates are allocated years in advance and legal costs begin to accumulate long before a presiding officer has even had sight of the matter. Litigation becomes expensive and time-consuming. Against this backdrop, alternative dispute resolution (ADR) has become increasingly significant in South Africa.
What is alternative dispute resolution?
ADR refers to recognised processes through which disputes are resolved without proceeding to a full trial before a magistrate or judge. Rather than relying solely on judicial determination, ADR provides structured mechanisms that allow disputes to be addressed in a way that is usually quicker and far less rigid than court procedure. ADR shifts the focus away from winning at all costs and towards finding a workable solution. Instead of concentrating only on how a court might decide a matter at some future date, it considers whether there is a lawful and workable way to resolve the dispute sooner. Importantly, ADR does not replace litigation. If a matter cannot be resolved through these processes, the parties remain entitled to proceed to trial.
The main types of ADR in South Africa
Mediation
Mediation involves appointing a neutral mediator who facilitates discussions between the parties to assist them in reaching settlement. The mediator does not decide the outcome or determine who is correct. Instead, the mediator guides the process, helps clarify the issues, and assists the parties in exploring possible solutions. Mediation is widely used in commercial disputes, personal injury matters, professional negligence claims, family disputes, and property-related conflicts. It is particularly effective where parties have an ongoing relationship, such as business associates or co-parents, who will continue interacting long after the dispute is resolved.
Arbitration
Arbitration is more formal than mediation and is often described as a private trial. An arbitrator hears evidence and submissions from the parties and makes a binding decision. Unlike mediation, the outcome is imposed on the parties and is enforceable. Arbitration is commonly provided for in commercial contracts, especially in construction, engineering, shareholder, and other specialised commercial arrangements. It is typically chosen where parties want finality but do not want to wait years for a court date.
Negotiation
Negotiation is the simplest and most common form of dispute resolution. This may occur informally between the parties themselves or through their legal representatives. Unlike other types of ADR, there is no neutral third party involved. The parties simply engage with each other, exchange proposals, and attempt to find common ground.
Conciliation
Conciliation resembles mediation but allows for a more interventionist role by the neutral third party. A conciliator may propose solutions or guide the parties more actively towards a possible compromise. It is most frequently encountered in labour disputes and statutory dispute resolution forums to resolve matters swiftly and prevent escalation. Like mediation, conciliation does not result in a binding decision unless the parties reach agreement.
The benefits of ADR compared to litigation
Cost
Litigation is inherently expensive. ADR processes are often more cost-effective, particularly if parties engage before the matter spirals into full discovery and trial preparation. Where ADR does not result in full settlement, it frequently narrows the issues, reducing the scope and cost of any eventual trial.
Speed
Court rolls do not always align with commercial or personal realities. ADR enables parties to address disputes far earlier in the process, rather than being determined solely by court availability.
Confidentiality
Court proceedings are public, which may carry reputational consequences for individuals and businesses alike. ADR processes are private and usually conducted on a confidential and without prejudice basis, encouraging more open engagement.
Control and Flexibility
In litigation, the outcome is determined by a presiding officer within the limits of the law and available remedies. ADR allows parties greater control over both the process and the outcome, often allowing for creative and commercially sensible outcomes that a court would not be able to order.
How ADR is applied in practice
Contractual ADR clauses
Many commercial agreements contain clauses requiring disputes to be referred to mediation or arbitration before litigation may be pursued. Courts generally enforce these provisions. A party who disregards an agreed mediation or arbitration clause may find the proceedings stayed until the process has been followed and may face adverse cost consequences.
Mediation within the court framework
In both the High Court and the Magistrates’ Courts, the rules now require parties, at the commencement of litigation, to indicate whether they agree or oppose referral of the dispute to mediation. While these provisions do not compel settlement, they ensure that mediation is considered at an early stage, before costs escalate and positions become entrenched.
The Revised Directive Introducing Mandatory Mediation in the Gauteng Division, which came into effect in April 2025, goes further. In civil trial matters within that Division, no new trial date will be issued unless accompanied by a Mediator’s Report confirming that mediation has taken place or has been properly engaged with in terms of the prescribed protocol.
In practical terms, this means that mediation must be completed before a matter progresses to trial. The Directive also provides for consequences where parties fail to participate meaningfully, including adverse cost orders.
Although presently applicable to the Gauteng Division, the Directive reflects the growing pressure on civil court rolls and the need to move matters through the system more efficiently and may well influence similar developments in other divisions.
Private agreements to mediate
In many matters, parties agree to mediate once a dispute has crystallised. This may occur before summons is issued, during the exchange of pleadings, or even shortly before trial.
Where parties recognise the cost and uncertainty of litigation, a jointly arranged mediation provides a structured opportunity to resolve the dispute without the constraints of formal court procedure.
Challenges and limitations of ADR
ADR is not a universal solution. In certain matters, particularly those involving complex points of law, judicial determination remains necessary. Furthermore, mediation will not succeed if parties attend without settlement authority or simply treat the process as a procedural box-ticking exercise. Power imbalances may also affect the process, and a skilled and properly trained mediator plays an important role in managing these dynamics and maintaining fairness.
Specialising in ADR in South Africa
ADR is rapidly developing into a recognised area of practice. Those wishing to specialise in mediation or arbitration should undertake accredited training and gain practical experience. While a sound understanding of legal principles is valuable, effective dispute resolution also requires strong listening skills, neutrality, and the ability to manage conflict constructively. Additionally, ongoing professional development remains essential.
Frequently asked questions
Is ADR compulsory?
In certain jurisdictions, including the Gauteng Division for civil trials, mediation has become a prerequisite for obtaining a trial date. In other contexts, it remains strongly encouraged but not mandatory.
Is a settlement agreement concluded after ADR binding?
Yes. Once reduced to writing and signed, it is contractually binding and can be enforced like any other agreement. A settlement agreement may also be made an order of court.
What happens if ADR does not resolve the dispute?
The matter proceeds to litigation, often with the issues narrowed.
Who pays for mediation?
Costs are usually shared between the parties unless agreed otherwise and are often treated as costs in the cause.
Do you have to be a lawyer to practise ADR?
No. Mediators and arbitrators come from a range of professional backgrounds. What is essential is proper training, practical competence, and adherence to appropriate ethical standards.
About the author
Dharini Rangasamy is the director of Rangasamy Attorneys Inc. She is an admitted attorney and accredited mediator who is passionate about resolving disputes through ADR, as it promotes dignity, efficiency, and practical fairness over prolonged litigation. She completed Gawie le Roux’s Attorneys’ admission exam courses for Papers 1 and 3 in 2024. In addition to her practice, she creates accessible legal education content on social media under the handle @mylawyerdharini.
Last updated on 12 March 2026.