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9 Cards in this Set
- Front
- Back
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Mediation, Negotiation & Arbitration share 5 characteristics |
1. Informal by comparison to the litigation process 2. Voluntary 3. Flexible 4. Consensual 5. Interest Based |
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Negotiation |
Defined - A private, voluntary & consensual process whereby parties attempt to resolve their differences personally by agreement. Confidential unless in the public interest No 3rd party |
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Mediation |
Defined - A private, voluntary & consensual process whereby parties attempt to resolve their differences personally by agreement, with a 3rd party, mediating over the process. Mediator- assists parties to reach a suitable settlement. Makes suggestions, counter proposals, provides information or advise. Parties themselves must reach agreement. Mediator must be impartial, fair & prejudice. Non binding & could at most be legally enforced by the courts in terms of contract law |
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Arbitration 4 Distinctive attributes |
1. Agreement between parties who consent to the process 2. Agreement provides for a process whereby substantive rights are determined 3. Arbitrator is chosen or methods chosen both agree 4. Rights are determined in an impartial manner |
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Arbitration Act 42 of 1965 Matters Excluded from Arbitration |
1. Matrimonial cases 2. Matters relating to status 3. Criminal cases 4. Validity of Arbitration agreement |
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Who may be appointed as arbitrator?
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•The parties to an arbitration agreement may appoint whomever they wish, and, unless a contrary intention is expressed in the arbitration agreement, the reference is to a single arbitrator.
• The arbitrator is not the agent of the party who appointed him or her, and must act impartially. • The fact that an arbitrator is related to one of the parties does not disqualify the arbitrator. • The main requirement is that the arbitrator must act impartially. |
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Power of court to appoint an arbitrator
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• Any party may serve the other party, parties or arbitrators with a written notice requiring him, her or them to appoint, or agree to the appointment of, an arbitrator.
• This may be done, for example, where the reference is to a single arbitrator and the parties do not agree on the appointment of an arbitrator, or where more than one arbitrator must be appointed and the parties do not agree on the appointment of the arbitrators. • If the parties cannot reach agreement on an appointment, and written notice requiring an appointment has been served but not complied with, the party who gave the notice may apply to the court to make the necessary appointment. The court may thereupon appoint an arbitrator or arbitrators. • An arbitrator appointed by the court has the same power to act and make an award as if he or she had been appointed in accordance with the terms of the arbitration agreement. |
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Arbitration Proceedings Specific Powers of an arbitration tribunal |
1. Require parties to disclose relevant info 2. Require any party to deliver legal pleadings 3. Appoint a commissioner to hear evidence if cannot attend 4. Determine time & place 5. Administer Oaths or affirmations to parties or witness 6. Examine the parties & other persons appearing 7. Accept evidence given in an affidavit |
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Time, manner & Publication of Arbitration award |
Unless provided for otherwise, the award must take place within 4 months Award must be in writing and signed by all members of the tribunal Arbitrator may make an interim award or order specific to performance of the contract |
