Courts are dispute resolution venues of last

resort. When a matter goes to court, disputants

have relinquished their ability to resolve their differences by negotiation. The initiation of

legal proceedings in a court of law is a final and

drastic step and generally signifies the

repudiation of a commercial relationship and

commercial history.

Litigation is very expensive and takes a very

long time to conclude. It is misleading to call

the process of court commandeered dispute

resolution “dispute resolution” in the true

sense of those words, the fact of the matter is

courts conclude disputes but they do not

facilitate reconciliation.

What I have referred to as “the top end of town”

comprises those organizations that are

consumed with resolving disputes quickly, cost

effectively and with the least amount of

commercial collateral damage. Expert

determination as described in the paper is a

very sophisticated form of dispute resolution

and is well suited to this echelon. Where

informed institutions are able to choose the

umpire to “circuit break” a problem, as is the

case in sport, they are generally happy to defer

to the umpire’s ruling.

In recognizing the virtues of expedited dispute

resolution through the mediums of mediation

and expert determination; the author is

nevertheless at pains to point out such

observation is not in derogation of the role

courts. The higher courts will always be the

seminal judicial cathedrals because after all it

is these institutions that established the binding

precedents that provide guidance to all other

judicial and quasi decision making institutions.

The paramouncy of the courts is to provide

certainty and guidance rather than to provide

the swiftest routes to decisions of moment.

The concept of dispute resolution is often

misunderstood. The community often confuses

the idea that particular established forums are

designed to resolve disputes. Judicial

determinations are construed as dispute

resolution mechanisms but they are more in

the nature of a sanction and in a sense can be

heavily punitive. The “loser” would not

ordinarily opine that their dispute was resolved.

The contrary might be the case, he/she/it may

say that a dramatic and unceremonious form of True and pure dispute resolution is where

resolution process has a reconciliation

mechanism. Disputes can be resolved in a

manner that is characterized by a happy ending.

Such encounters will have witnessed the

ingredients of a conflict or potential conflict, a

willingness to solve the problem by both parties,

a lack of arrogance, a preparedness to take

cognisance of the other party’s point of view and

a willingness to pay homage to wise and

impartial counsel. Mediation, negotiation and

expert determination are all dispute resolution

mediums that sit comfortably with this dispute

resolution pathology and the net effect will be

resolution, reconciliation and possibly even the

“adding of mortar” to a long term and constructive

union.