Abstract

This article examines the extent to which mediation and ADR can be used to modernise civil litigation in South Africa in line with comparable developments in other jurisdictions. It does so in the context of Amartya Sen’s theory of justice, based on individuals’ capacity to order their lives, and of contemporary access to justice notions relating to court procedures. Through a fictional case study on court-based ADR in a franchise dispute the article explores ways in which a regulatory framework can accommodate ADR in case management systems and delineates some of the institutional requirements for such an arrangement. It makes a proposal along these lines, and evaluates it in terms of Sen’s theory and other justice norms.