Dispute Resolution & Ethics a1810145
Lectures
L1 - Introduction
Covers a lot of important legal and practical issues
• Conflict and dispute theory
• Ways of resolving civil disputes
• Court processes – how to manage a case that is going to go to trial
• Alternatives to Court – alternative disputes resolution (ADR) models to avoid litigation
• Professional ethics
Conflicts and disputes (Theory)
Conflict and dispute theory
Conflict Dispute
• Resources (scare resources) When underlying conflict erupts and parties to
• Behavior (proper behavior?) conflict can no longer manage their relationship
• Ideology (different ideology?)
At which time choices have to be made about how to fix the problem.
Page 1 of 136
,Dispute Resolution & Ethics a1810145
Lectures
Resolving civil disputes
Go to court • Civil justice system is For:
designed to provide every Natural third party
member of society with
an unbiased and Against:
accessible venue to Costly
resolve dispute. Time consuming
• Question: does it?
Alternative dispute resolution • Mediation Definition: alternative dispute
(ADR) theory and practice • Arbitration resolution (ADR) means getting a
• Dispute counselling neutral third party to assist the
• Conciliation disputants to sort out the dispute.
• Etc
Emotions fuel disputes and limit resolution options
How did you FEEL about the other party?
How did you feel about talking with them?
Did you TRUST them?
How did you feel about making the first move?
Were you anxious?
Angry?
Betrayed?
Fed up?
Just wanted it to go away?
Typical dispute behaviour
• Emotion driving responses to conflict/dispute
• Not empathising
• Unshakeable belief that you are RIGHT and they are WRONG
• Only seeing one perspective
• Avoiding conflict
• Unable to trust/communicate
• Anxious and distressed
• Sad and uncertain
• Offended or angry
Barriers to resolution
Typical client behaviour
What we are talking about here is typical client behavior. The sort of typical client behavior that you will
encounter when you first meet the client.
Going to court will fix it, right? (not really)
It can be hard for people to get over the numerous barriers to resolving disputes – even the simplest step,
like talking to each other, becomes insurmountable. People seldom think about going straight to Court if
Page 2 of 136
,Dispute Resolution & Ethics a1810145
Lectures
they are in a conflict or a dispute. They usually try to fix it up themselves. And usually, they do. But
sometimes, nothing works, and culturally we think that ‘going to court’ will fix it.
Human needs The law The court and court process
• Emotions • Defines disputes by • Rules that set the steps
• Conflict reference to legal causes that you take to get a
• Territorial of action case organized for a trial.
• Competition • It looks for facts that will • Limited to legal issues
• Anger support or disprove those • RISK that you will not win.
• Revenge legal causes of action • Win lose or draw, it will
• Avoidance • That’s all it’s interested in cost A LOT OF MONEY
• Vindication • None of this Might only get order or
• Apology compensation.
• Support
• Make up
• Mend relationship
• Get back to normal
• Leave it behind and move
on
Typical dispute might include multiple elements (three):
1. Moving forward/ business/ rebuild relationships
2. Legal issues/ facts
3. Emotional issues, non-legal needs
Court process looks backwards to attribute blame and remedies blame with $. It does not consider future
options, diverse solutions, or how anyone feels about anything.
Distinguishing the DR process
ADR Court Adjudication
• What is the problem here? • Who did what?
• How is it affecting you both? • Can you prove it with admissible
• What could we do to sort it out? evidence?
• Do either of you have any ideas? • If proven, does it result in legally
• What sort of solution might work for each of recognized fault?
you? • If so, should there be compensation?
• Do we have any common ground? • How much does compensation does the
• How would you feel about this? law suggest is appropriate?
• Would you both be able to live with this
solution?
• How would that work going forward?
Characteristics
• Proving facts
• Collaborative • Laying blame
• Non-competitive • Determining value of loss
• Imaginative
Page 3 of 136
, Dispute Resolution & Ethics a1810145
Lectures
• Problem solving
• Building trust
• Meeting human needs
• Parties control process
• And decide own outcomes
*If people have been actively involved in finding solutions, if they have been heard, listened to, and had
their views considered, if they have personally agreed to the outcome (not been told by a Judge what the
outcome will be) they are much more likely to comply with the agreed outcome. And be happier about it.
Your Role
Different models to resolve civil disputes Being a litigation lawyer
• Most clients don’t know much about ADR • Problem Solving
and assume litigation is the only option. • Legal analysis and reasoning
• Therefore, litigators must educate their • Fact investigation, selection organization
client. and use
• Requires them to know the ADR • Drafting and writing
alternatives, how they work in practice, and
• Lateral thinking
be able to evaluate which alternatives are
appropriate for different cases. • Patience and persistence
• And then to recommend to their client the • Understanding conflict theory
best model for the particular dispute. • Client interviewing and advising
• Negotiation and ADR
• Advocacy
• Planning, organization and management
• Recognizing and resolving ethical and
professional dilemmas
• Good communication skills
• Understanding human needs
Starting litigation
Starting litigation
Litigation should be a last resort after all other options have been identified and explored. Litigation should
only be considered if you have advised your client of the merits of their case, the cost, the risk, the
alternatives to litigation.
In cases of urgency, you may have to go direct to litigation:
• Cause of action running out of time (limitation period)
• Require urgent relief (need the party to immediately stop something, i.e. injunction)
• Party leaving jurisdiction (plan to go to other jurisdiction)
Civil Litigation Courts in SA
(at the litigation point, decide which one to go, refer to the court rules. i.e. damages amount)
• Supreme Court (SA)
• District Court (SA)
• Magistrates Court (SA)
Page 4 of 136
Lectures
L1 - Introduction
Covers a lot of important legal and practical issues
• Conflict and dispute theory
• Ways of resolving civil disputes
• Court processes – how to manage a case that is going to go to trial
• Alternatives to Court – alternative disputes resolution (ADR) models to avoid litigation
• Professional ethics
Conflicts and disputes (Theory)
Conflict and dispute theory
Conflict Dispute
• Resources (scare resources) When underlying conflict erupts and parties to
• Behavior (proper behavior?) conflict can no longer manage their relationship
• Ideology (different ideology?)
At which time choices have to be made about how to fix the problem.
Page 1 of 136
,Dispute Resolution & Ethics a1810145
Lectures
Resolving civil disputes
Go to court • Civil justice system is For:
designed to provide every Natural third party
member of society with
an unbiased and Against:
accessible venue to Costly
resolve dispute. Time consuming
• Question: does it?
Alternative dispute resolution • Mediation Definition: alternative dispute
(ADR) theory and practice • Arbitration resolution (ADR) means getting a
• Dispute counselling neutral third party to assist the
• Conciliation disputants to sort out the dispute.
• Etc
Emotions fuel disputes and limit resolution options
How did you FEEL about the other party?
How did you feel about talking with them?
Did you TRUST them?
How did you feel about making the first move?
Were you anxious?
Angry?
Betrayed?
Fed up?
Just wanted it to go away?
Typical dispute behaviour
• Emotion driving responses to conflict/dispute
• Not empathising
• Unshakeable belief that you are RIGHT and they are WRONG
• Only seeing one perspective
• Avoiding conflict
• Unable to trust/communicate
• Anxious and distressed
• Sad and uncertain
• Offended or angry
Barriers to resolution
Typical client behaviour
What we are talking about here is typical client behavior. The sort of typical client behavior that you will
encounter when you first meet the client.
Going to court will fix it, right? (not really)
It can be hard for people to get over the numerous barriers to resolving disputes – even the simplest step,
like talking to each other, becomes insurmountable. People seldom think about going straight to Court if
Page 2 of 136
,Dispute Resolution & Ethics a1810145
Lectures
they are in a conflict or a dispute. They usually try to fix it up themselves. And usually, they do. But
sometimes, nothing works, and culturally we think that ‘going to court’ will fix it.
Human needs The law The court and court process
• Emotions • Defines disputes by • Rules that set the steps
• Conflict reference to legal causes that you take to get a
• Territorial of action case organized for a trial.
• Competition • It looks for facts that will • Limited to legal issues
• Anger support or disprove those • RISK that you will not win.
• Revenge legal causes of action • Win lose or draw, it will
• Avoidance • That’s all it’s interested in cost A LOT OF MONEY
• Vindication • None of this Might only get order or
• Apology compensation.
• Support
• Make up
• Mend relationship
• Get back to normal
• Leave it behind and move
on
Typical dispute might include multiple elements (three):
1. Moving forward/ business/ rebuild relationships
2. Legal issues/ facts
3. Emotional issues, non-legal needs
Court process looks backwards to attribute blame and remedies blame with $. It does not consider future
options, diverse solutions, or how anyone feels about anything.
Distinguishing the DR process
ADR Court Adjudication
• What is the problem here? • Who did what?
• How is it affecting you both? • Can you prove it with admissible
• What could we do to sort it out? evidence?
• Do either of you have any ideas? • If proven, does it result in legally
• What sort of solution might work for each of recognized fault?
you? • If so, should there be compensation?
• Do we have any common ground? • How much does compensation does the
• How would you feel about this? law suggest is appropriate?
• Would you both be able to live with this
solution?
• How would that work going forward?
Characteristics
• Proving facts
• Collaborative • Laying blame
• Non-competitive • Determining value of loss
• Imaginative
Page 3 of 136
, Dispute Resolution & Ethics a1810145
Lectures
• Problem solving
• Building trust
• Meeting human needs
• Parties control process
• And decide own outcomes
*If people have been actively involved in finding solutions, if they have been heard, listened to, and had
their views considered, if they have personally agreed to the outcome (not been told by a Judge what the
outcome will be) they are much more likely to comply with the agreed outcome. And be happier about it.
Your Role
Different models to resolve civil disputes Being a litigation lawyer
• Most clients don’t know much about ADR • Problem Solving
and assume litigation is the only option. • Legal analysis and reasoning
• Therefore, litigators must educate their • Fact investigation, selection organization
client. and use
• Requires them to know the ADR • Drafting and writing
alternatives, how they work in practice, and
• Lateral thinking
be able to evaluate which alternatives are
appropriate for different cases. • Patience and persistence
• And then to recommend to their client the • Understanding conflict theory
best model for the particular dispute. • Client interviewing and advising
• Negotiation and ADR
• Advocacy
• Planning, organization and management
• Recognizing and resolving ethical and
professional dilemmas
• Good communication skills
• Understanding human needs
Starting litigation
Starting litigation
Litigation should be a last resort after all other options have been identified and explored. Litigation should
only be considered if you have advised your client of the merits of their case, the cost, the risk, the
alternatives to litigation.
In cases of urgency, you may have to go direct to litigation:
• Cause of action running out of time (limitation period)
• Require urgent relief (need the party to immediately stop something, i.e. injunction)
• Party leaving jurisdiction (plan to go to other jurisdiction)
Civil Litigation Courts in SA
(at the litigation point, decide which one to go, refer to the court rules. i.e. damages amount)
• Supreme Court (SA)
• District Court (SA)
• Magistrates Court (SA)
Page 4 of 136
