ADR Moves From Outside to Inside Government in South Africa
The experience in South Africa indicates that ADR systems may be implemented initially as a substitute
for a poorly functioning formal dispute resolution system, but may later be adopted as part of a
widespread reform process. Prior to and during the transition in government, many NGOs, financed by
numerous donors, undertook ADR efforts for a variety of purposes throughout South Africa. One of the
earliest and most effective NGOs was the Independent Mediation Service of South Africa (IMSSA),
which started in the early 1980's to focus on resolving labor-management disputes.
Later, the African Centre for the Constructive Resolution of Disputes (ACCORD), the Vuleka Trust, the
Community Law Center, the Wilgespruit Fellowship Centre, the Community Dispute Resolution Trust
(CDRT), the Institute for Multi-party Democracy (MPD), and the Community Peace Foundation (CPF),
among others, implemented a variety of training, mediation, and community reconciliation programs to
help manage community tension, resolve neighborhood disputes, train community leaders in negotiation
and conflict management techniques, and establish neighborhood justice centers.
After the peaceful transition of power, the government saw these ADR programs as models for new
governmental dispute management mechanisms. The Commission for Conciliation, Mediation, and
Arbitration (CCMA), established to resolve labor disputes, has been patterned after the success of IMSSA
(and is directed by Charles Nupen, the founder and former president of IMSSA). The Department of
Justice is planning to establish local community courts, and to create a system of family mediation boards
to help resolve local and family disputes. The Department of Land Affairs has created the National Land
Reform Mediation Panel to help resolve disputed land claims. The Department of Public Works, the
Department of Mineral Affairs, and several other national and state agencies are considering their own
dispute resolution mechanisms.
Although many of the original NGOs are now struggling to adapt to a situation in which government
agencies have taken on many of their responsibilities and have hired many of their experienced personnel,
the impact of the NGO ADR community on the transitional government has been one of the most
important and lasting effects of the NGO programs.
Although the NGO programs were established initially to provide a substitute for ineffective, biased, and
corrupt government judicial structures, they became laboratories for a new national system of justice.
The impact on social change of the variety of ADR programs, while difficult to measure, has been
important in South Africa. As Roelf Meyer, the lead National Party negotiator, noted at the end of the
transition negotiations, the success of those negotiations and the success of private ADR services helped
redirect the country from a culture of violence to a culture of negotiation. (See South Africa Case Study.)12 What Can ADR Do? Goals and Possible Uses of ADR
3) ADR can increase satisfaction of
disputants with outcomes.
Use ADR when:
·High cost, long delay, and limited
access undermine satisfaction with
existing judicial processes.
·Cultural norms emphasize the
importance of reconciliation and
relationships over "winning" in
dispute resolution.
·Considerations of equity indicate that
creativity and flexibility are needed
to produce outcomes satisfactory to
the parties.
·Low rates of compliance with court
judgments (or a high rate of
enforcement actions) indicate a need
for systems that maximize the
likelihood of voluntary compliance.
·The legal system is not very
responsive to local conditions or
local conditions vary.
Do not use ADR when:
·Cultural norms suggest a preference
for formal, deterministic solutions.
·Cultural norms are discriminatory or
biased and would be perpetuated in
the ADR system.
Although increasing the satisfaction of
disputants is one of the development objectives
identified by earlier USAID studies, user
satisfaction is often an indirect proxy for more
focused concerns such as cost, access, and delay.
The impact of ADR programs on these
development objectives is addressed in other
sections. Beyond these aspects, disputant
satisfaction is also affected by more subtle
factors, such as the creativity of outcomes, the
impact of the ADR process on the ongoing
business or personal relationships, and disputant
confidence that the