Private Ordering and Dispute Resolution

Hutchison, Andrew; Rycroft, Alan; Porter-Wright, Michelle

Private Ordering and Dispute Resolution

Journal Article

2018-05-01

Journal Title

South African Law Journal

Link to Journal

http://www.jutajournals.co.za/south-african-law-journal/

Department

Department of Commercial Law

Faculty

Faculty of Law

Abstract

Here we discuss the current state of ADR law, practice, and education in South Africa, with a particular focus on the potential role for mediation in commercial disputes. Our angle is to frame the material with a discussion of economic and contract theory, particularly that on private ordering and relational contracting. We link this socio-legal theory to more specific theory on ADR itself, and then go on to contextualise ADR in South Africa. We discuss the role of ADR in commercial practice generally, as well as providing a detailed account of the South African construction industry specifically. Our major conclusion is that ADR is often the most appropriate form of dispute resolution, particularly where social capital is at stake. This provides the link between ADR theory and private ordering/relational theory. Another important conclusion is that South Africa needs more specialist mediators, as well as a legal and political environment which incentivises such training.