The Law: Con­tracts - Part 25

Disputes: You Don’t Have To Go To Court!

Tourism Tattler - - EDITORIAL - With Louis the Lawyer

As sug­gested in my ar­ti­cle on stan­dard terms and con­di­tions last month, ‘A fur­ther rel­e­vant clause could pro­vide for al­ter­na­tive dis­pute res­o­lu­tion (‘ADR'). Disputes are tra­di­tion­ally re­solved by sum­mons and en­su­ing court cases, but ADR was ini­ti­ated in the ‘80s and has be­come quite pop­u­lar. There is the more com­monly known ar­bi­tra­tion and then the lesser know me­di­a­tion. Th­ese forms of ADR have the ben­e­fit over lit­i­ga­tion of be­ing less costly (by and large), more pri­vate, and quicker' – I promised you a more de­tailed ar­ti­cle, so here it is!

Lo­cally ADR in the travel and tourism in­dus­try takes place on a very in­for­mal and ad hoc ba­sis. It has not been for­malised but I per­son­ally be­lieve such a step is nec­es­sary if not over­due as more and more disputes are aris­ing in the in­dus­try, ei­ther by virtue of dis­grun­tled trav­ellers or be­tween mem­bers of or­gan­i­sa­tions such as ASATA, EXSA, FEDHASA, FGASA, SAACI, SACIA, SATSA and SITE. I have, with the help of ASATA and SATSA pro­moted and con­ducted (largely suc­cess­ful I am glad to be able to add!) a few such ADR ses­sions, mainly based on very in­for­mal me­di­a­tion with the par­ties pre­sent­ing them­selves (i.e. no le­gal rep­re­sen­ta­tion). How­ever, I am re­ally keen to for­malise the pro­ce­dure and to get ‘buy-in’ from all the as­so­ci­a­tions men­tioned above for the rea­sons dis­cussed below. The best way to do this would be to make it an in­te­gral part of mem­ber­ship by in­clud­ing it in the con­sti­tu­tion.

What is the sit­u­a­tion in­ter­na­tion­ally in the travel and tourism in­dus­try? ABTA (‘The As­so­ci­a­tion of Bri­tish travel Agents’) ‘..has got to­gether with the Char­tered In­sti­tute of Ar­bi­tra­tors (CIArb) to help agents and op­er­a­tors re­solve le­gal disputes with min­i­mum has­sle' by pro­vid­ing a ‘.. .new com­mer­cial me­di­a­tion and ar­bi­tra­tion scheme for tour op­er­a­tors and travel agents'. IFTTA (The In­ter­na­tional Fo­rum of Travel and Tourism Ad­vo­cates – an in­ter­na­tional or­ga­ni­za­tion for lawyers, ad­vo­cates and ed­u­ca­tors who spe­cialise in travel and tourism law – of which I am a mem­ber) has forged links with the world Travel Dis­pute Cen­ter, Inc. and the Travel Dis­pute Me­di­a­tion LLC (based in Florida, USA) to ‘con­duct ADR sem­i­nars and serve as the central me­di­a­tion as­sign­ment cen­ter for grad­u­ates of the ADR sem­i­nars which it con­ducts' – So, if we want to ‘tap into’ over­seas ex­per­tise, it is ‘ready and wait­ing’!

Th­ese in­no­va­tive steps by ABTA and IFFTA raise a few ques­tions: What in fact is ar­bi­tra­tion? What is me­di­a­tion? Will ei­ther ac­tu­ally re­sult in ‘min­i­mum has­sle’? Is it cheaper and/or more ef­fec­tive than lit­i­ga­tion or other mech­a­nisms avail­able in South Africa for the res­o­lu­tion of disputes?

Let’s start by look­ing at def­i­ni­tions of ar­bi­tra­tion and me­di­a­tion: ‘Ar­bi­tra­tion is a pri­vate ju­di­cial hear­ing with an out­come that binds the par­ties and puts an end to the dis­pute be­tween them' (as de­fined by the Ar­bi­tra­tion Foun­da­tion of South Africa (‘AFSA' – see below). ‘Ar­bi­tra­tion is the ref­er­ence of a dis­pute to an ar­bi­tra­tor for de­ter­mi­na­tion in a ju­di­cial man­ner after hear­ing both par­ties' (Ken Dou­glas of Web­ber Wentzel 1986)

Me­di­a­tion, on the other hand, is a form of Al­ter­na­tive Dis­pute Res­o­lu­tion (‘ADR’) and is cho­sen by par­ties who would ‘.. rather set­tle their dis­pute am­i­ca­bly, with the help of a third per­son, but with­out be­ing bound to the out­come' (The As­so­ci­a­tion of Ar­bi­tra­tors)

Con­fus­ing? Yes, I’m sure so let’s con­fuse you some more. The afore­men­tioned are two ways in which par­ties can re­solve disputes, but there are more.

In Part 26 (Feb 2017) I’ll take a brief look at the others be­fore we fo­cus on ar­bi­tra­tion and me­di­a­tion, the op­tions cho­sen by ABTA.

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