CAVENDISH UNIVERSITY ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

STUDENT NUMBER: _ 074-650

JAN 2024
INTAKE
ONE/TWO YEAR

LECTURER: MRS E.M. MASUMBA SIAME

SUBJECT: CUZL 423 ADR

ASSIGNMENT NO. 1

DATE HANDED OUT:

DATE DUE IN: 07.03.2024

DAY/EVE/DL DL

ASSIGNMENT BRIEF

STUDENT INSTRUCTIONS:

1. This form must be attached to the front of your assignment

2. The assignment must be handed in without fail by the submission date (see assessment schedule for your course)
3. Ensure that the submission form is date stamped by the reception staff when you hand it in
4. Late submission will not be entertained unless with prior agreement with the subject tutor
5. All assessable assignments must be word processed

ASSIGNMENT GUIDANCE

This assignment is intended to assess the student’s knowledge in all of the

following areas. However, greater emphasis should be given to those items marked
with a
(Tutor: - please tick as applicable)
ASSESSABLE SKILLS Please Tick.
Good and adequate interpretation of the questions

Knowledge and application of the relevant theories

Use of relevant and practical examples to back up theories

Ability to transfer and relate subject topics to each other

Application or use of appropriate models

Evidence of library research

Knowledge of theories

Written Business English communication skills

Use of visual (graphs) communications

Self Assessed ‘time management’

Evidence of field research

Tutor’s Mark Contribution

MARKS
(Administration only*)
QUESTION A
*
z:\kets\memo1
Introduction:

In Zambia, The Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002 1
defined mediation as a process by which a neutral third party called a mediator assists parties to a
dispute reach a voluntary settlement of their differences through a binding and enforceable
agreement. In Zambia, the Constitution (Amendment) Act no. 2 of 2016. provides under article
118. (2)2 that in exercising judicial authority, the courts shall be guided by the following
principles:

(d) alternative forms of dispute resolution, including traditional dispute resolution mechanism,
shall be promoted, subject to clause (3). Clause 3 provides that traditional dispute resolution
mechanisms shall not—

(a) contravene the Bill of Rights;

(b) be inconsistent with other provisions of this Constitution or other written law; or

(c) be repugnant to justice and morality.

In the United States, The American Uniform Mediation Act under Section 2 3 defines “Mediation
as a process in which a mediator facilitates communication and negotiation between parties to
assist them in reaching a voluntary agreement regarding their dispute.”

The National Conference of Commissioners on Uniform State Laws (NCCUSL) 4 in the USA
approved and recommended for enactment the UMA in all States. The UMA promotes the use
and uniformity of mediation in the United States. It grants a legal privilege for those involved in
the mediation process. The Working Group on Arbitration and Conciliation (WG) of the United
Nations Commission on International Trade Law (Commission) adopted the Model Law. The
Model Law promotes the use and uniformity of mediation to resolve international and
intranational commercial disputes. It offers basic rules for the mediation process. 5

1
The Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002
2
The Constitution (Amendment) Act no. 2 of 2016 article 118. (2)
3
The American Uniform Mediation Act under Section 2
4
The National Conference of Commissioners on Uniform State Laws (NCCUSL)
5
The Working Group on Arbitration and Conciliation (WG) of the United Nations Commission
on International Trade Law (Commission)
The United States Institute of Peace (USIP) rates that Mediation is sometimes referred to as
assisted negotiation. It does not involve a judge or require testimony, and it is not limited by
rules of evidence. Instead, mediation is informal, flexible and private.6

Mediation consists of these three distinct phases, including an introduction, problem-solving and
closure phase.

The mediator sets ground rules while suggesting a schedule. The mediator also oversees
meetings, giving each side the opportunity to state their perspectives and their preferred solutions
to the conflict. The parties discuss relevant issues, their interests and possible solutions. Each
party is able to speak with the mediator in private to discuss its position. Both parties state their
terms for resolving the conflict before drafting a document detailing the terms of their
commitments.

This case of U.S. v. Microsoft, Inc. has its jurisdiction in the United States.

When carrying out mediation in a complex and high-stakes case like U.S. v. Microsoft, Inc.,
there are several obstacles that one may encounter. As a law clerk advising Judge Posner on the
potential challenges ahead, it is important to consider the following obstacles in the mediation
process:

Power Imbalance: In mediation involving powerful entities like the U.S. government and
Microsoft, there may be a significant power imbalance between the parties. This can complicate
the negotiation process, as the party with greater power may wield influence and resist
compromise, leading to challenges in reaching a mutually acceptable resolution. 7

For example, In Bank of Zambia v. Richard Nyambe and others (SCZ NO. 30/2006) 8, BOZ
seemed to wield a lot of power as it is a government institution with a lot of financial and legal
resources at its disposal, than the appellants. The supreme Court guided as follows,

"The mediation conducted in the High Court and the Industrial Relations Court is Court Annexed
Mediation; meaning it is part of the judicial system. Mediation is basically a process for

6
The United States Institute of Peace (USIP)
7
Adams, S., & Brownsword, R. (Eds.). (2001). Research Handbook on Legal Dissonance and the
Globalizing Neo-Liberal Normative Order. Edward Elgar Publishing. (APA).
8
Bank of Zambia v. Richard Nyambe and others (SCZ NO. 30/2006)
resolving disputes, helping prevent disputes in the future, and mitigating the negative effects of
disputes. Mediation has the benefit that it provides the greatest degree of party control over the
process and over the outcome.

In Court Annexed Mediation proper cases for mediation are referred to Mediation by the trial
Judge. Where, for whatever reasons, Mediation fails, the case should be referred back to the
Judge who shall summon the parties to fix a hearing date."

This was in line with the philosophy of Mediation, namely to give parties an opportunity to
resolve their dispute with the assistance of a Mediator, but at same time retaining
the parties right to have their case heard and determined by the Court.

High Stakes and Emotions: The high stakes involved in the case, including potential breakup of a
major corporation, large damage claims, and reputational considerations, can heighten emotions
and adversarial dynamics during mediation. Emotions such as mistrust, defensiveness, and fear
of loss can impede productive communication and problem-solving.

For example, from 2002 to 2004, the Organization of American States, the United Nations
Development Program and Jimmy Carter opened a dialogue between Venezuelan President
Hugo Chavez Frias, the government and the opposition. According to USIP, the mediation’s
purpose was to reconcile a deeply divided society and preserve democratic processes while
preventing violent conflict.9

Complex Legal and Economic Issues: The case involves intricate legal and economic issues
related to antitrust law, competition, innovation, consumer choice, and market dynamics.
Understanding and navigating these complexities during mediation sessions may pose a
challenge, particularly in ensuring that legal principles align with economic realities and market
implications.

This was similar to the case of Charles Mambwe and others v. Mulungushi investments limited
(in liquidation) and Mpelembe properties limited. (Selected judgement no. 36 of 2016). In this
case, the parties during mediation failed to make computations of their positions pertaining to the

9
Smith, J. K. (2010). The Role of Legal Principles in Business Transactions. Business Law
Journal, 15(2), 45-58.
calculations of the appellants’ terminal benefits. The disagreement was high such that the parties
had to go back to the supreme Court for guidance.10

Multiparty Dynamics: Given the involvement of multiple stakeholders, including the U.S.
government, Microsoft, competitors, and consumers pursuing damage claims, managing
multiparty dynamics and addressing diverse interests, perspectives, and demands can be
complex. Balancing the needs and expectations of various parties while fostering cooperation
and consensus poses a challenge.

Public Perception and Media Influence: The high-profile nature of the case and media scrutiny
can influence public perceptions, stakeholder behavior, and the mediation process itself.
Managing external pressures, public relations strategies, and media narratives while maintaining
confidentiality and facilitating constructive dialogue among parties may present obstacles.

Resistance to Change: Microsoft's defense of its innovation record and resistance to potential
structural remedies like breakup reflect a reluctance to embrace significant changes. Overcoming
entrenched positions, preconceptions, and resistance to transformative solutions can be
challenging in mediation efforts aimed at finding a resolution that addresses underlying issues
effectively.11

Addressing these obstacles will require strategic planning, effective communication, maintaining
neutrality and impartiality, fostering trust and collaboration, and encouraging creative problem-
solving approaches to navigate the complexities of the case and guide the parties towards a
mutually acceptable resolution. As Judge Posner's law clerk, providing insights on these
challenges will be crucial in formulating a mediation strategy that enhances the prospects of a
successful outcome in the U.S. v. Microsoft, Inc. case.

10
Charles Mambwe and others v. Mulungushi investments limited (in liquidation) and Mpelembe
properties limited. (Selected judgement no. 36 of 2016)
11
Johnson, L., & Patel, R. (2005). Understanding the Legal Framework: A Practical Guide for
Law Students. Oxford University Press.
Question B

To overcome the obstacles encountered in carrying out the mediation process in the U.S. v.
Microsoft, Inc. case, several tactics and approaches can be employed. As a law clerk advising
Judge Posner on effective strategies, consider the following recommendations:

Establish Neutrality and Trust: Emphasize the importance of establishing a neutral and impartial
environment during the mediation sessions. Encourage all parties to trust in the mediator's
objectivity and commitment to facilitating constructive dialogue and resolution. For example,
After the Kenyan post-election riots of 2007–2008, the International Center for Transitional
Justice (ICTJ) reported that “a truth commission was established to examine not only the
immediate violence but its root causes as well.” According to USIP and ICTJ, the Truth Justice
and Reconciliation Commission consisted of four Kenyans and three foreigners.

Encourage Open Communication: Create opportunities for open communication among the
parties involved. Encourage active listening, transparency, and the sharing of perspectives,
concerns, and interests to foster understanding and collaboration. For example, Representatives
from the European Union (EU), Japan, Norway and the United States attended the Tokyo
Conference on Reconstruction and Development of Sri Lanka in June 2003. The purpose of this
conference was to show support for the reconstruction and development of Sri Lanka by offering
$4.5 billion USD in financial support.12

Focus on Interests, not Positions: Encourage the parties to identify underlying interests and needs
rather than rigid positions. By focusing on shared goals and interests, the parties can explore
mutually beneficial solutions and avoid entrenched negotiation stances.

Facilitate Creativity and Problem-Solving: Encourage brainstorming and creative problem-

solving techniques to generate innovative solutions to complex issues. Explore options beyond
traditional remedies to address the underlying concerns and interests of all parties effectively.

Manage Power Dynamics: Address power imbalances by ensuring each party has an equal
opportunity to voice their concerns and interests. Encourage collaboration and negotiation based
on mutual respect rather than hierarchical power dynamics.13
Brown, A. P. (2017). Legal Issues in Contract Law. Journal of Legal Studies, 25(4), 321-335.
12

Williams, G. R., & Johnson, M. H. (2013). Law and Society: Exploring the Relationship
13

Between Legal Principles and Social Norms. Cambridge University Press.

Promote Confidentiality and Privacy: Stress the importance of maintaining confidentiality and
privacy throughout the mediation process. Create a safe space where parties can freely express
their views and explore potential solutions without fear of public scrutiny.

Utilize Caucus Session: Conduct private caucus sessions with each party to address individual
concerns, explore interests, and facilitate private discussions. By acknowledging and addressing
individual needs outside the joint sessions, the mediator can tailor solutions to meet specific
requirements effectively. For example, During the Nigerian Civil War (1967-1970), Quakers
Adam Curle, John Volkmar and Walter Martin mediated between leaders by working as
messengers to alleviate tensions between the parties. This helped cultivate a feeling of resolution
at the end of the war.

Seek Creative Remedies and Consensus: Encourage the parties to consider a range of creative
remedies beyond traditional approaches. Identify areas of common ground and strive to achieve
consensus on key issues while remaining flexible in exploring various potential solutions.

Maintain Persistence and Patience: Emphasize the importance of persistence and patience in
navigating complex negotiations and overcoming obstacles. Mediation processes in high-stakes
cases require time and dedication to foster trust, communication, and collaboration among the
parties.14

By implementing these tactics and approaches, Judge Posner can enhance the effectiveness of the
mediation process in the U.S. v. Microsoft, Inc. case and improve the prospects of reaching a
successful resolution that addresses the parties' interests and concerns.

References
14
Adams, S., & Brownsword, R. (Eds.). (2001). Research Handbook on Legal Dissonance and
the Globalizing Neo-Liberal Normative Order. Edward Elgar Publishing.
Legislation referred to:

The Constitution (Amendment) Act no. 2 of 2016 article 118. (2).

The Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002.

The American Uniform Mediation Act under Section 2.

Publications referred to:

Adams, S., & Brownsword, R. (Eds.). (2001). Rese arch Handbook on Legal Dissonance and the
Globalizing Neo-Liberal Normative Order. Edward Elgar Publishing. (APA).

Brown, A. P. (2017). Legal Issues in Contract Law. Journal of Legal Studies, 25(4), 321-335.

Johnson, L., & Patel, R. (2005). Understanding the Legal Framework: A Practical Guide for Law
Students. Oxford University Press.

Smith, J. K. (2010). The Role of Legal Principles in Business Transactions. Business Law
Journal, 15(2), 45-58.

Williams, G. R., & Johnson, M. H. (2013). Law and Society: Exploring the Relationship
Between Legal Principles and Social Norms. Cambridge University Press.

Cases referred to:

Bank of Zambia v. Richard Nyambe and others (SCZ NO. 30/2006)

Charles Mambwe and others v. Mulungushi investments limited (in liquidation) and Mpelembe
properties limited. (Selected judgement no. 36 of 2016)

Other works referred to:

The National Conference of Commissioners on Uniform State Laws (NCCUSL).

The Working Group on Arbitration and Conciliation (WG) of the United Nations Commission
on International Trade Law (Commission).

The United States Institute of Peace (USIP).