Choosing a Process - Dispute ResolutionSubmitted by SchoemanLaw Inc
By Robyn Shepherd, SchoemanLaw Inc
Litigation is a dispute resolution process in our courts, either taking place in the Magistrates' or High Court. During these proceedings, a Magistrate or Judge hears each case put forward and delivers a judgment. Civil litigation is between the Plaintiff/ Applicant and the Defendant/ Respondent. This process is formal and regulated by the Rules of Court. Additionally, the court record is open to the public unless the court has ordered otherwise.
On the other hand, arbitration is a far less formal dispute resolution process that does not occur in a courtroom but a venue that the parties choose. Parties may proceed to have the matter adjudicated in a pre-agreement or at the time of the dispute rather than electing to go through the civil litigation process.
An essential difference between litigation and arbitration is that an arbitrator can be appointed by mutual agreement and be one who is skilled and experienced in the subject matter of the dispute. This is not the case with civil litigation, where the State appoints the Magistrate or Judge, and the parties have little or no control over their appointment.
Additionally, an arbitration hearing can be set down once all the parties are ready with their documentation and the availability of their expert witnesses has been secured. Civil litigation does not follow this. Parties will receive a court date once pleadings have closed, taking approximately a few months to a few years. In litigation and arbitration, the timing herein depends on the nature and complexity of the matter.
In litigation, the court's judgment may be taken on appeal, whereas arbitration awards possess a quality of finality. In general, arbitration awards are final. The arbitration award may be appealed if the parties agree to an appeal procedure.
All in all, litigation and arbitration each have a firm place and function in our legal system. Moreover, there are benefits to each process.
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