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Being an electrical contractor or subcontractor is hard, and often, unfair.

In this article, we will look at how to solve disputes in a non-confrontational manner by making use of Alternative Dispute Resolution (“ADR”).

Most probably we have used or heard the presupposition “a coin has 2 sides”, and we have accepted it.


Well, the above statement is incorrect. Coins have 3 distinct sides. Heads Tails and a thin side that joins the others.

Our general inclination to merely accept phrases leads us to ignore reality.

Right at the start I would like to clear up how common misconceptions can blind us to the obvious.

When we learn to observe and analyse what we are hearing, we get a picture of a new reality.

Learning certain techniques based on nothing more than common sense is not nearly as “common” as many people seem to imagine.

Because we have a wealth of information coming to us from the world around us, far more than we can handle we tend to cope with the potential overload by filtering the information.

Not surprisingly, given so much information, and the individual filtering thereof, no two people ever have THE SAME mental MAP of an event or situation. Even a single word can be the basis for two quite separate maps.

In a world of infinite information, miscommunication and misunderstandings are growing rapidly because we assume the process map was obvious and shared.

Was it?  What is important in a day’s work? How do we avoid wrong impressions and disputes? Who is right and who is wrong? Etc….

The answers to the questions are found in the questions themselves There is no right or wrong if we look for SOLUTIONS instead of winning. Real tangible solutions promote a win-win scenario where relationships can continue into the future.

In today’s world is advisable to learn why is better not to win every time.


What is Alternative Dispute Resolution (ADR)? 

Alternative dispute resolution -ADR, is a broadly encompassing term widely recognized as covering any means of resolving disputes outside the scope of formal litigation. They extend to cover informal or formal negotiation, settlement meetings, binding or non-binding expert or neutral evaluation, arbitration, disciplinary or other internal regulatory processes, and facilitated intervention by third parties, including chairman-guided forums, conciliation, mediation, mini-trial and executive tribunals.

Dispute resolution means the field of practice and study that is made up of the selection, design, and application of a process that deals with the particular dispute in the best way and in accordance with the requirements of the parties.

The purpose of ADR is to relieve court congestion, prevent unnecessary costs and delays, involve the parties in the dispute resolution process, and improve and facilitate access to justice.

In 2008, some courts required some parties to resort to ADR of some type like Mediation, before permitting the parties’ cases to be tried (the European Mediation Directive (2008) expressly contemplates so-called “Compulsory” Mediation.

You may ask, if the ADR system was already adopted, what is mediation? Mediation may be defined as a voluntary, non-binding, and private dispute resolution process in which a neutral person helps the parties reach a negotiated settlement. It is a structured negotiation process, in which an independent person, known as the mediator, assists parties to identify and assess options and negotiate an agreement to resolve their dispute.


The Mediator.

The role of the mediator is key to the success of any mediation and the best person for the job must be selected.

The mediator must be a truly neutral person having no association with either of the parties nor any interest in the outcome.

Mediation requires all parties to trust and give authority to the mediator. Should any party withdraw that authority, the mediation will come to an end. Likewise, should trust in the mediator be broken for any reason, it is unlikely that a settlement will be reached.

The mediator’s role is to assist the parties in a non-judgmental way in their negotiations with each other and help the parties work towards a consensual resolution to the dispute.

However, the parties themselves remain responsible for their own decisions and answerable for the terms of any settlement that may be agreed upon.


The Mediation process.

Many people think that mediation is an informal process in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. It doesn’t work this way. Mediation is a multi-stage process designed to get results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation process that account for the system’s high rate of success.

There are 5 stages of the facilitative model of mediation:

Stage 1: Preparation and opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Stage 2: Disputants’ opening statements. Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might entertain general ideas about resolution, as well. While one person is speaking, the other is not allowed to interrupt.

Stage 3: Exploration. The mediator might encourage the parties to respond directly to the opening statements, depending on the participants’ receptivity, to further define the issues. If necessary, a private discussion can be arranged with each party. This is a chance for each party to meet privately with the mediator. to discuss the strengths and weaknesses of each position and to exchange offers.

Stage 4: Negotiation. The mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn’t bring the parties back together until a settlement is reached or the time allotted for the mediation ends.

Stage 5: Closing. If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn’t reach an agreement, the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations.

The benefits of mediation

The entire construction environment and legal landscape are changing rapidly, forcing us to acquaint ourselves with alternative mechanisms for the resolution of a conflict. Dealing with disputes or conflicts in the workplace is a difficult task, but mediation can be effective in helping to resolve a tense and often emotional situation.

Settling disputes through mediation can be faster, cheaper, and can leave all parties feeling in a better state of mind over the agreed decision. Some of the significant benefits of mediation include:

A Higher Sense of Confidence: in a mediation process, the conflicted parties will get greater control to find a suitable solution. Mediation does not guarantee an outcome. Instead, the mediator works with the parties to try to find a comfortable solution.

Mediation enhances Confidentiality versus the Litigation Process, whereby disputes are resolved through the court, which is potentially a very public process. When disputes are settled out of court through mediation, it is entirely confidential to both parties, unless specifically agreed otherwise.

Reduced costs — Settling disputes through court proceedings is generally very expensive and the overall costs can be highly unpredictable. Resolving disputes through mediation, however, can often be faster and cheaper than going to trial.

Preserve Relationships: a Mediation Process involves using a trained, neutral mediator to engage with the conflicting parties and to help them work towards finding a solution that is acceptable to both sides.  This will also allow us to preserve the relationships. Mediation enhances help both parties focus on communicating effectively with each other and coming to a negotiated settlement that works for all involved.


According to a study done by the United States Department of Justice in 1996 mediation has a success rate of 78%. It seems that if you are willing to give up the need to win for the need to find a solution you will have a 78% chance of satisfying your need.

Mediation and conflict resolution in South Africa was one of the first statutes passed into law by the first post-apartheid parliament the Labour Relations Act of 1995 (LRA).

A new way of thinking and approaching diversity. If you would like more information about mediation or are interested in becoming a mediator, you can contact Nancy Hamity at Roelf Nel Inc.