ALTERNATIVE

DISPUTE
RESOLUTION

CLASS NOTES
MBOLELA, 2022
 PREFACE
This document contains class notes on Alternative Dispute Resolution for the 2021/2022 academic
year as understood and recorded by Mwape Mbolela. Certain alterations and additions have been
applied solely for the purpose of making these notes more comprehensive and easier to understand.

Signed:
Mwape Mbolela
University of Zambia, 2022

MBOLELA, 2022
 CHAPTER ONE
INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution (ADR) - What is it?
The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of
dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. It is
an effort to arrive at mutually acceptable decisions and an alternative to adversarial processes such
as litigation or administrative processes that result in "win/lose" outcomes.
The term ADR can refer to everything from facilitated settlement negotiations in which disputants
are encouraged to negotiate directly with each other prior to some other legal process, to arbitration
systems or mini-trials that look and feel very much like a courtroom process. Processes designed
to manage community tension or facilitate community development issues can also be included
within the rubric of ADR. The major alternative dispute resolution systems are as follows:
➢ negotiation,
➢ conciliation
➢ mediation,
➢ arbitration systems.

THE FOUR (4) PILLARS OF ADR

The Four (4) pillars of ADR are the legs that all the alternative dispute resolution mechanisms
stands on. They are as follows:
1. DIALOGUE
Communication is key in any alternative method of dispute resolution. ADR is premised on the
idea that the disputants talk their issues out so that they can better understand each other as opposed
to written communication where equivocation and misunderstandings are more likely to occur.

2. PARTICIPATION
Alternative dispute resolution depends on the participation of all the parties involved including the
neutral third party. This is the only way a resolution can effectively be arrived at.

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3. REPARATION
Alternative dispute resolution recognizes that a wrong has been done or a conflict has occurred.
ADR is therefore a platform for parties to make amends, heal and make good on obligations they
may have.

4. RE-INTERGRATION
ADR aims to bring the parties back together or in the position they were in but for the occurrence
of the conflict. Coming back together in harmony is a recurring motif in alternative dispute
resolution.

Memory Aid: DPRR

THE HISTORY OF ALTERNATIVE DISPUTE RESOLUTION

In understanding the history of ADR, an important starting point is the arrival of the British in
Rhodesia. North Eastern and North Western Rhodesia were two different territories each with their
own dispute resolution systems. The British however understood neither of them. As such, the
British brought in their own formal litigation system. Particularly in North Western Rhodesia, the
British introduced an appellate system which had the High Court and the Magistrate Court directly
under it. However, this was still not ideal as the natives did not completely do away with their
traditional system. Thus, they allowed the formalised system to work alongside the traditional
system. At this point there were two (2) functioning systems of dispute resolution; the traditional
system and the formal system.

This dual legal system however proved to be more complicated where dispute resolution was
concerned. As such, ADR was introduced as an official and alternative mode of dispute resolution.
It began as an ad hoc system. This means it was only resorted to when necessary. Before it was
formalised, it was only intended to help alleviate the burden on the courts. In some jurisdictions,
it was used for environmental and natural disputes. Overtime, it became important in reducing the
cost of litigation following the increase in business relations and marital disputes. The first legal
framework to acknowledge ADR was the High Court Rules when it formalized court annexed
mediation. This paved the way for more statutes on ADR to emerge. Currently, the Constitution

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(Amendment) Act No. 2 of 2016 gives effect to alternative dispute resolution in Article 118(2)
(d).

ALTERNATIVE DISPUTE RESOLUTION TODAY

ADR has been embraced in many legal systems worldwide as an important system. Among its
other advantages, it has proven to be important in maintaining social and business relationships.
Over the years, it has been used to resolve employer-employee disputes through stakeholder
participation and buy-ins. It has also been very effective in resolving marital conflicts. Most of the
methods of ADR involve a neutral third party who is well informed on the issue in question.
Because of this, parties in ADR have a better chance to resolve their disputes amicably. Also, when
parties fail to settle in ADR, they can always go back to litigation unless the parties agree
otherwise. It can therefore be said that ADR is not an end in itself but an alternative attempt at a
means to an end.

SOURCES OF ADR
Sources of ADR refer to those areas where alternative dispute resolution derives its authority and
where the various rules and principles of ADR can be found. In discussing the sources of ADR,
the following aspects will be considered:

✓ What it is
✓ Why it’s a source
✓ Examples

The sources are as follows:

1. ACTS OF PARLIAMENT

These refer to laws enacted by the legislature. They are sources of ADR in the sense that some of
them validate ADR as a valid system of dispute resolution while others provide for rules incidental
to ADR methods. Consider the following examples:

l. The Constitution

The Constitution is the Supreme law of the land under which all other laws in Zambia are
subordinate. Article 118(2)(d) provides that alternative forms of dispute resolution shall be
promoted provided they are consistent with the constitution and any other written law and that they

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are not repugnant to justice and morality. This means that it is now a constitutional principle that
where the courts deem fit, they can send a matter to ADR.

ll. The Arbitration Act

This is an Act of parliament that endeavours to provide for an arbitration procedure which is fair,
efficient and is capable of meeting the specific needs of arbitration. It also aims at redefining the
supervisory role of the courts in the arbitral process. All this is according to the preamble.

Ill. The International Labour Relations Act

Section 76 of this Act provides for conciliation as the prescribed method of dispute resolution
where collective disputes are concerned.

IV. The Legal Aid Act

The Legal Aid Act in Section 2 states that alternative methods of dispute resolution will include
negotiation, mediation, conciliation and arbitration. Furthermore, section 37 allows the director of
the legal aid board to recommend a party to ADR as a condition for a party to get legal aid.

V. The High Court Rules

Order XXXI of the High Court Act provides for court annexed mediation and its limitations.

2. CASE LAW

Case law or judicial precedents refer to the previous decisions of the courts which are legally
binding to the courts themselves or lower courts. They are a source of ADR in that some of the
provisions found in the Arbitration Act, the High Court Rules and other statutes are interpreted by
judges. For instance, in ZCCM v Vedanta Resources, the court interpreted section 17 and section
20 of the Arbitration Act. It was held that an arbitral award is binding pursuant to section 20 and
can only be altered by the court if it falls within the circumstances in section 17.

Precedents also help lawyers and judges identify which previous cases were sent to ADR by the
courts so as to determine the likelihood of being sent to ADR in their respective matters. In a
similar vein, previous decisions help lawyers and judges to determine whether a matter is
arbitrable. It was held in Oldies Oil Company Ltd v The AG and Constantinos James Papoutis
(2012) that the Courts will not enforce a contract which is tainted with illegality as it is contrary

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to public policy. Further it was stated in this case that although the arbitration clauses were valid,
it was inoperative and incapable of being performed as issues of illegality and public policy cannot
be resolved at arbitration. With such precedents, lawyers are saved a trip to court where they are
dealing with circumstances of a similar nature as they have the answers they need from previous
decisions.

3. INTERNATIONAL LAW

International law refers to rules established by custom or treaties and are recognized by nations as
binding in their relations with one another. There are numerous treaties and conventions which are
relevant to ADR in that they are domesticated or given effect in Zambia’s local legislation. The
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New
York,1958), better known as the New York Convention, is one of the most important United
Nations treaties in the area of international trade law and the cornerstone of the international
arbitration system.

Other instruments include:

➢ The Geneva Protocol on Arbitration Clauses 1923;

➢ The Geneva Convention on Execution of Foreign Arbitral Awards (1927)

4. WRITINGS OF RENOWNED AUTHORS AND JURISTS

These refer to books and pieces of writing by legal experts and judges. Although not binding, they
are sources of ADR in that they provide insight on various concepts of ADR to judges, lawyers
and students of the Law. Examples of renowned legal authors who have propounded on various
subjects in ADR are Margaret Munalula in her book ‘Legal Process in Zambia: Cases and
Materials’ as well as Laura Cooper in her book ‘ADR in the Work Place.’

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 CHAPTER TWO

ELEMENTS ESSENTIAL TO ADR

The elements essential to ADR refer to those necessary components that ought to be present for
alternative dispute resolution to be possible. Below are the 8 essential elements.

1. LEGITIMACY

This element focuses on how arguable and legal the subject matter of the dispute is under the law.
On one hand, this element speaks to whether or not the subject matter of the dispute is legal. ADR
will not be an option for parties who are in conflict over an illegal contract or undertaking because
the constitution in Article 118(2)(d) recognizes ADR in so far as it is subject to the constitution
or any written law. Lending credence to this is the case of Odies Oil Company vs. The AG and
Constantinos James Papoutis wherein it was held that a dispute over contract tainted with
illegality or contrary to public policy cannot be taken to arbitration. Furthermore, section 6(2) of
the Arbitration Act provides that illegal matters cannot be taken to arbitration.

On the other hand, this element speaks to the legitimacy of a matter as it relates to the method of
ADR being used. There are some matters that are not deemed appropriate by law to go to certain
forms of ADR. For instance, a matter that is not arbitratble in accordance with section 6(2) of the
Arbitration Act like a dispute relating to a matrimonial issue will not be legitimate at arbitration
but mediation.

2. INTERESTS

For ADR to be possible, an important thing to consider is the interests of both parties. It is essential
for any third party to understand what interests are being protected in the given matter. This
increases the likelihood of the parties reaching a mutually accepted settlement.

3. RELATIONSHIPS

The relationship between the parties is a major determinant of whether or not ADR will be possible
and what method of ADR will be best. From the outset, if the relationship between the parties is
acrimonious, it is less likely that the parties will resort to ADR and reach a mutually acceptable
conclusion given that ADR is consent based. If the parties do decide to go to ADR, the method of

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ADR that will be possible will dependent on the relationship between the parties. This because
some disputes cannot be resolved by certain types of ADR (e.g., matrimonial issues are not
arbitrable as per section 6 of the Arbitration Act). To the neutral third party, knowing the
relationship between the parties can assist them in deciding which position to take and how much
a financial benefit taking the case will be.

4. COMMUNICATION

It is a principle of practice in ADR that ADR is not a place of ambush. Communication is pertinent
to the success of the ADR process. The goal for each party is not to win or outsmart the other party
as it is in litigation. Therefore, every party involved in the ADR process must be allowed to
communicate and must have all necessary details of the matter communicated to them. Section 15
of the Arbitration Act states that if a claimant does not give their statement of claim/ defence to
the other party, they cannot proceed with arbitration.

5. EDUCATION

This element is concerned with how well-informed all parties involved are on the subject matter.
For the process to run smoothly, the disputants must be well acquainted with the implications of
choosing the method of ADR they have chosen. They must also be informed on their various
obligations towards the process if any. On the part of the neutral third party, there are certain
matters where he or she will need to be an expert or to be well acquainted on the subject matter of
the dispute. That way, the resolution arrived at will be an informed decision.

6. OPENNESS

This element refers to the willingness of the parties to be open to negotiation, reasonable
resolution, compromise and even going back to litigation. The ADR process is usually
compromised when parties embark on it hell bent on some outcome instead of having an open
mind.

7. COMMITMENT

This element speaks to how committed the parties are to the given ADR process. Since ADR is
consent based, there is a lot of agreeing and compromising involved. As such, if the parties are not
committed, the ADR process is unlikely to succeed. Another angle from which this element can

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be viewed is from the fact that in most ADR methods, the parties are allowed to abandon the
proceedings at any point. As such, whether or not the process will be successful is largely
dependent on the commitment of the parties.

8. ALTERNATIVES

This element refers to the parties’ knowledge of their other options. For instance, Order XXXI of
the High Court Rules provides that if mediation fails, the parties can always go back to court.
When the parties know all their options, they come to ADR with a more open mind.

Memory Aid – CIRA CELO

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 CHAPTER THREE

CHARACTERISTICS OF ALTERNATIVE DISPUTE

RESOLUTION
Alternative methods of dispute resolution have certain features peculiar to them discussed below.

1.) CONFIDENTIALITY

ADR procedures are confidential. This means the outcomes and intricacies of the hearings are not
public knowledge. There is no requirement that the information from the proceedings be provided
to the public. In fact, section 27 of the Arbitration Act requires that the arbitration proceedings
as well as any information about the arbitral award should not be disclosed by the parties. Also,
Order XXXI rule 10 of the High Court Rules states that any information pertaining to court
annexed mediation is confidential.

2.) ACTIVE PARTICIPATION OF THE PARTIES

The parties are largely involved in the dispute resolution process. They have a say in most of the
intricacies of the process including:

➢ How the process will go

➢ The third party who will oversee the process (as per section 12 of the Arbitration Act)
➢ In some instances, what law will apply to the dispute (e.g. choice of law in arbitration)
➢ Where the proceedings will take place (e.g. seat of arbitration)
➢ what the outcome will be.

In addition to having a substantial say on how the process will go, the parties are allowed to explain
their interests, grievances and reasons for certain things. Communication is not very restricted.

3.) FAIRNESS OF OUTCOMES

The goal of ADR is to ensure that both parties walk away having agreed on a mutually acceptable
resolution. The decision in ADR procedures is not imposed but rather achieved by the input of
both parties.

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4.) RELAXED PROCEDURES

ADR methods are characterized by their informal procedures. The hearings and sessions do not
require the parties to follow strict rules on how they should present their arguments, what will and
will not be admissible, and so forth. The failure to follow procedure does not render the entire case
invalid. This is different from litigation where the failure to follow procedure has the potential to
invalidate the entire case. An illustration of this can be evidenced in Guardall Security Ltd v
Reinford Kabwe where failure to follow procedure rendered the entire case null and void and the
proceedings had to start again.

5.) NEUTRALITY

Almost all the methods of alternative dispute resolution involve the inclusion of an impartial third
party who facilitates the dispute resolution or renders a decision on the matter. It is pertinent that
this third party is neutral. There should be no bias towards one party. To that effect, section 17 of
the Arbitration Act provides that any arbitral award that is given as a result of fraud, corruption
or bias will be set aside by the court.

6.) ACCESSIBLE

Alternative methods of dispute resolution are a creature of the Constitution. They are a valid
method of dispute resolution as per Article 118(2)(d). Furthermore, other provisions of the law
validate ADR. For instance, Order XXXI of the High Court Act provides for court annexed
mediation, section 2 of the Arbitration Act recognizes the four methods of alternative dispute
resolution. Two main points must be taken note of here, first, that ADR is a legally legitimate form
of dispute resolution in Zambia and it can be resorted to by anyone except where the law proscribes
it. Second, it is an easier, less involving method of dispute resolution method to resort to. The
combination of these two factors makes ADR accessible.

7.) TIME EFFECTIVE

Given their informal nature, ADR procedures naturally tend to consume less time than litigation.
Also, some ADR methods have a time limit to ensure that the processes are expedient. For instance,
Statutory Instrument No. 72 of 2018 requires that mediation does not take longer than 45 days.

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8.) SELF DETERMINATION

By design, ADR methods are largely tailored and controlled by the parties themselves. It is them
who decide/agree on everything including the mechanism used, the neutral third party (as per
section 12 of the Arbitration Act), the language to be used throughout the proceedings and the
outcome of the hearing. The fact that there is active participation of the parties makes ADR a
process of self-determination. The likelihood of the success of the process is largely determined
by the parties involved.

Memory Aid: FANTRASC

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 CHAPTER FOUR

COMPARATIVE ANALYSIS OF ADR AND LITIGATION

World over, the orthodox way of resolving disputes has been litigation. However, due to
population growth, increase in human interaction, increasing in people's needs and increase in
business as well as industry, it has been found prudent to engage in other means of dispute
resolution. As such, various mechanisms have been developed over the years to ensure justice is
attained by people in a reasonable manner. The caveat is that the alternative methods of dispute
resolution must be utilised within the confines of the law as per Article 118(3) of the Constitution.
Alternative methods of dispute resolution can deliver preventive, subjective, procedural as well as
practical justice.

It delivers preventive justice in the sense that these methods endevour to resolve the dispute
without it having to go to court wherefrom an acrimonious relationship can result. It delivers
subjective justice in the sense that the parties have the freedom to speak and understand each other's
arguments. It delivers procedural justice in that the resolution of the dispute takes precedence over
adherence to procedural formalities. To that end, ADR processes have relaxed procedures. It
delivers practical justice in the sense that the entire procedure aims at achieving what is best for
the parties and what will be the most pragmatic outcome as opposed to achieving what is best for
who argues best. It is however important to mention that where there is an illegality, litigation is
the best.

THE ROLE OF THE COURTS

In Zambia 1997, amendments were made to the law to bring in court annexed mediation upon
realization that the court system was overwhelmed. By 2016, ADR was being promoted by the
courts and became a new constitutional requirement. However, litigation remains the main system
of dispute resolution. This means that cases are typically presented to the courts first before any
ADR method is considered.

The courts are required to be active in promoting ADR and in facilitating court annexed mediation
and arbitration. To facilitate mediation, there are people attached to the courts specially trained to
be mediators. To facilitate arbitration, the courts, on the authority of section 10 of the Arbitration

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Act, are obliged to refer any matter that is subject to an arbitration agreement/ clause to arbitration
before it can be heard in court if any of the parties requests so. The rationale behind the provision
is that if parties have voluntarily agreed to submit to arbitration, then they should only be allowed
to go to court if they have attempted and failed to resolve their dispute through arbitration. Where
there was no arbitration clause, the parties are allowed to agree to go to arbitration before going to
court or mid-case.

ADVANTAGES OF ADR OVER LITIGATION

Memory aid - TRRIF LC

Although litigation remains the main system of dispute resolution in Zambia, there are some
respects in which ADR is a better option compared to litigation. These are as follows:

1. RELAXED PROCEDURES

ADR method have less strict procedural rules as opposed to litigation. The procedures are less
formal and more relaxed as opposed to litigation which is characterised by formal procedures and
many formalities. Here, failure to follow procedure will not invalidate the case. This was the case
in Guardall Security Ltd v Reinford Kabwe where failure to follow procedure rendered the entire
case null and void and the proceedings had to start again. The relaxed procedures are a benefit of
ADR over litigation in the sense that the parties will not be prevented from resolving their dispute
because procedure was not followed.

2. CONFIDENTIALITY

ADR hearings are confidential, the outcomes and intricacies of the hearings are not public
knowledge. Section 27 of the Arbitration Act states that information about arbitration and the
arbitral award should be kept confidential. Similarly, Order XXXI Rule 10 of the High Court
Act provides that mediation settlements need not be made public. In litigation on the other hand,
the excerpts or records from court proceedings can be made available to the public.

3. LOCUS OF CONTROL

In ADR procedures, the parties are, to a large extent, in control of how the procedures play out. In
ADR methods, it is up to the parties what method will be used; who the neutral third party will be
(section 12 of the Arbitration Act); what law will apply to them; where the hearings will be held

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and the outcome of the process. In addition, parties in ADR sometimes reserve their right to
litigate. If they are not happy with the outcome, they can walk away and proceed to litigation. The
parties also have more autonomy compared to litigation. On the other hand, in litigation, the parties
do not have much control over how, who and where the case is decided.

4. INEXPENSIVE

Generally, ADR methods are comparatively cheaper than litigation. This, in part, can be attributed
to the fact that in ADR procedures, the parties do not have to appear through their legal
representative. The expense of legal fees is therefore foregone. On the other hand, parties in
litigation are usually faced with the responsibility to pay legal fees and see the litigation process
through to the end with all its delays. It however is important to mention that ADR methods such
as arbitration may sometimes prove to be expensive. As such, this characteristic is only an
advantage of ADR over litigation if the cost of going to ADR is less than the cost of litigation.

5. TIME EFFECTIVE

ADR procedures due to their lack of procedures tend to conclude faster than litigation. Also, ADR
methods usually have a fixed time frame within which the resolution should be arrived at. For
instance, SI No. 72 of 2018 provides that mediation need not take longer than 45 days. Litigation
on the other hand can go either way and the reality is usually that the cases may run longer than
expected. For instance, Anderson Mazoka v Levy Patrick Mwanawasa ran up to 4 years before it
was put to rest. Only a few matters like those involving domestic violence or commercial loss have
a fixed period of time within which they should be heard.

6. FAIRNESS IN OUTCOMES

The goal of ADR is to ensure that both parties walk away having agreed on a mutually acceptable
resolution. Litigation, due to its adversarial nature, results in one party walking away with a more
favourable outcome than the other depending on who makes their case best.

7. RELATIONSHIPS ARE MANTAINED

In ADR methods, the hostility that may come with litigation is avoided. For this reason, matters in
which it is pertinent that the relationship be maintained are best dealt with by ADR methods. To
illustrate this, disputes to do with family, custody of children or maintenance are sent to mediation

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pursuant to Order XXXI of the High Court (Amendment) Rules. Also, contractual disputes
where it is in the commercial interests of the parties that the relationship is preserved are better
dealt with using ADR methods as opposed to litigation. These advantages of mediation in disputes
where the relationship of the parties is intended to be preserved were provided in Mambwe and
Another v Mulungushi Investments and Another.

DISADVANTAGES OF ADR

Inasmuch as ADR methods have some advantages over litigation, there are some shortcomings
that ADR methods have in themselves and when compared to litigation.

1. NO GUARANTEED RESOLUTION

With alternative methods of dispute resolution, it is not a guarantee that a resolution will be
reached. Because, the processes are consent based and their success is largely determined by the
commitment and input of the parties, where the parties do not co-operate or refuse to see the
process through to the end, prospects of arriving at a resolution are endangered. Also, most of the
ADR methods lack finality. Most of the times, the parties who are not satisfied resort to going
back to litigation thereby dragging the matter further.

2. CAN POTENTIALLY UNDERMINE THE ROLE OF THE COURTS

Alternative methods of dispute resolution, as their name suggests, provide an alternative avenue
for disputes to be resolved. With an alternative present, there is the danger that the courts may
increasingly delegate their role to settle disputes to ADR (that’s where the danger is). Overtime,
this can lead to the court system failing in its duty. After all, the alternative must remain an
alternative.

3. LACK OF PRECEDENTS

The fact that past ADR resolutions have no effect on the latter ones means that each case can be
decided on its own merits. The implication of this is that there is no jurisprudence being created.
Also, decisions in ADR are kept private and only become public knowledge if the parties decide.
This means that there is no point of reference when dealing with matters in ADR, as such, there is
no expectation of how the case might go therefore eliminating the certainty that law should
provide.

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4. CAN BE USED AS A STALLING TACTIC

Because ADR provides an alternative, parties may decide to go to ADR just as a stalling tactic as
they find a way to have the upper hand in litigation or as a delaying tactic to postpone their
responsibility to the other party.

5. LIMITED SCOPE

ADR does not cover a wide range of disputes. For instance, there are many matters that are not
arbitrable. There is also the rule that ADR cannot be used for violations of human rights or, as per
section 6(2) of the Arbitration Act, criminal matters. The implication of this is that ADR is only
effective in a specific areas and may not be appropriate for most disputes.

6. POWER IMBALANCES

When it comes to disputes where one party may have more bargaining power than the other, not
much is done about this inequality in ADR methods. The disadvantaged party may be muzzled
into accepting an unfavorable decision.

7. LIMITED POSSIBILITY OF APPEAL

Some methods of ADR such as arbitration have final and binding decisions. It is only in limited
circumstances that there is a possibility of appeal. These circumstances are listed in section 17 of
the Arbitration Act. This position was explained in ZCCM vs Vedanta Resources as well as in
John Kunda vs Keren Motors. This locks the parties in a situation where they have to accept the
decision. If an arbitral award does not satisfy the requirements of section 17 of the Arbitration Act,
it cannot be appealed. In litigation on the other hand, decisions of a court can be appealed to a
higher court.

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 CHAPTER FIVE

CONCEPTS OF ALTERNATIVE DISPUTE RESOLUTION

Concepts of ADR refer to those realities and notions that have a bearing on ADR procedures. The
notable concepts include:

1. CONFIDENTIALITY

ADR proceedings are confidential and the information that emerges from them is not public
knowledge unless the parties intend to make it as such. Section 27 of the Arbitration Act requires
that the arbitration proceedings as well as any information about the arbitral award should not be
disclosed by the parties. Also, Order XXXI Rule 10 of the High Court Rules states that any
information pertaining to court annexed mediation is confidential.

2. PRIVILEDGE

In ADR, the parties are undoubtedly in a privileged position. This is because ADR processes are
characterised by active participation of the parties and are largely controlled by the parties. This is
different from litigation wherein the parties are not as free to express themselves and are sometimes
in a vulnerable position where they are asked loaded questions that are meant to incriminate them.

3. FAIRNESS

ADR is largely premised on fairness and balance between the parties. In ADR, the parties are both
given ample chance to participate; the outcome has to be mutually acceptable; and it is consent
based.

4. GENDER

Linked to the concept of fairness, the concept of gender is concerned with the power dynamics of
the parties in terms of gender. The aim of ADR in this regard is that parties must be treated fairly
irrespective of their gender.

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5. CULTURAL ISSUES

In ADR, the cultures of the parties are taken into consideration and sometimes they have a bearing
on the outcome of the proceedings. However, it is important that culture does not compromise the
fairness of the process. For instance, misogyny or male domination which is common in most
cultures must not reflect in the ADR proceedings.

6. PSYCHOLOGICAL MATTERS

Disputes and conflicts may take a psychological toll on the parties. ADR takes the parties'
psychological state into consideration throughout the process. This assists the neutral third party
to know how to handle the parties. Also, the process and the resolution are intended to cure any
psychological injury that may have come along with the dispute.

7. ECONOMIC ISSUES

The economic status of the parties has the potential to influence the smooth running of the ADR
process. However, this should not be the case. For this reason, financial bias or corruption are not
tolerated in ADR. Section 17 of the Arbitration Act provides that an arbitral award can be set
aside if it was arrived at fraudulently or by corruption. Also, ADR takes into consideration the
finances available to both parties when determining the reasonableness of any financial
compensation that is agreed upon.

8. SOCIAL ISSUES

The social issues occurring around a dispute may be considered in determining a matter using
ADR. However, the caveat to this is that the social issues must not derail the process and the
resolution.

MEMORY AID: CCPP FEGS

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 CHAPTER SIX
ALTERNATIVE METHODS OF DISPUTE RESOLUTION
The common alternative methods of dispute resolution in Zambia are: negotiation, conciliation,
mediation and arbitration. These methods are given legal effect in section 2 of the Legal Aid Act
which recognizes the aforementioned as valid alternatives to litigation. This section focuses on the
said methods, bringing to light their features, advantages and disadvantages.

NEGOTIATION
Negotiation as a form of ADR refers to a formal discussion held between parties who have a
dispute with the view of coming to a mutually acceptable resolution. Here, parties trade off and
engage in a give and take situation until they can resolve their dispute. In a negotiation, there are
always two sides. It does not matter how many people are on each side, what is important is that
there are two sides. People usually engage in negotiations to avoid going to court. It is important
that the parties be objective lest the process will not succeed.

CHARACTERISTICS OF NEGOTIATION

✓ It is voluntary - the decision to engage in negotiation is made by the parties themselves

usually in a bid to avoid going to litigation.
✓ It requires full disclosure - the parties are required to bring to the table everything relevant
and important to the issue.
✓ It is consent based - the parties are at liberty to accept or reject the outcome of the
discussion.

PRINCIPLES OF NEGOTIATION

These refer to those things that the parties must do when engaging in a negotiation. They are as
follows:

1.) Separate the People from the Issues

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This means the parties must ignore their respective statuses and view each other as equals. It also
means they must divorce emotions from the negotiation process because emotions have the
potential the cloud the smooth running of the process and complicate the matter. It only when the
parties separate themselves and their emotions from the issues will the process have better
prospects at success.

2.) Focus on the Interests of the Parties

It is of utmost importance that the parties focus on what the other party wants so that they can see
how best they can work around it. This way, it is easier to come to a mutually acceptable resolution.

3.) Create Options for Mutual Gain

A good negotiation process is give and take. This means that inasmuch as each party must attempt
to push their agenda, they must be willing to accommodate the other parties’ interests. This way,
both parties are creating an environment where they both stand to gain something and compromise.

4.) Objectivity

It is important that the parties are objective throughout the negotiation process. That way, they will
be viewing the issue from a vantage point that is unbiased or impartial. When the parties are
subjective, they tend to focus only on their interests.

KEY ELEMENTS OF NEGOTIATION

1.) The 'What'

This element focuses on the issues.

What is the issue under negotiation here?

2.) The 'Why'

This element refers to the positions.

Why have these issues arisen and why are these parties on different sides of it?

3.) The 'How'

This element refers to the interests of the parties.

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Given the interests of the parties, how can the issues be resolved?

NEGOTIATION SKILLS

These refer to those qualities that the parties must possess to increase their likelihood of reaching
a mutually acceptable resolution. They are now discussed below.

1.) Preparation and Planning

Before going to the negotiation table, the parties must prepare. They must plan how they will
present their interests and to what extent they will accommodate the other party’s interests.

2.) Due Diligence

It is important that the parties acquire as much knowledge as they can on the issue at hand and the
party on the other end of dispute. Knowing the person one is dealing with makes it easier to know
how best to trade off with them.

3.) Objectivity

The ability to be objective allows a party to think clearly and on their feet. Being subjective may
cloud a party's judgement and even subject them to being tricked.

4.) Verbal Expression

It is important that the parties are able speak and express themselves clearly so as to clearly present
their interests and make it easier to be understood by the other party.

5.) Being Able to Listen

In any negotiation, the parties must not only be willing to pay attention and listen carefully but
also to understand what the other party is actually saying. The parties must strive to listen to
understand and not to just to respond.

6.) Persuasion

The art of persuasion involves being able to win over the other party intelligently and not
crookedly.

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7.) Patience and Decisiveness

The negotiation process must not be rushed. The parties must be patient with each other. They
must be willing to wait until the best outcome to suit both of them is reached. At the same time,
they must be willing to wrap up the process. At the end of all the waiting, there must be some
decision or some outcome.

ADVANTAGES OF NEGOTIATION

1. Saves Time

Because the negotiation process is informal, it is a fairly easy process which tends to consume less
time and is less stressful.

2. Confidential

The things discussed in the negotiation need not be availed to anyone other than the parties. What
is said in the discussion can stay in the discussion.

3.) Preserves Relationships and Improves Communication

Because the process is a safe space where parties can discuss and hear each other out, relationships
between disputants tend to be preserved and survive the aftermath of the negotiation.

4.) Flexible

Because the process is informal, it can be tailored towards the needs of the parties involved.

5.) Clear

Negotiation allows parties to be more clear [than they were before the negotiation] on what is at
stake or on what is required of them.

DISADVANTAGES OF NEGOTIATION

1.) No Neutral Third Party

The negotiation process lacks the much needed help of an impartial third party. The parties are left
alone to try to come to a mutually acceptable resolution. This increases the chance of the process
failing.

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2.) It is Entirely Dependent on the Good Faith of the Parties

Negotiation is only likely to be successful in so far as the parties are willing to come to their
resolution in good faith.

3.) No Third Parties

The negotiation process does not allow for the inclusion of any other interested parties other than
the disputants. This may compromise the efficacy of the decision making process and the decision
itself.

4.) Power Imbalances

Because there is no neutral third party or any interested parties, there is little or no check on the
power imbalances between the parties. The closed door nature of this process makes the parties
who may have less bargaining power to be taken advantage of.

5.) No Precedent

The outcome of a previous negotiation has no effect on the next one, no matter how similar the
circumstances are. This because the latter set of parties my want different things from the former
set. Without any precedent, the predictability, certainty and growth of the law is compromised.

6.) It May Be Used as a Stalling Tactic

Some individuals who may want to stall the litigation process may use negotiation to achieve that
purpose.

7.) No Obligation to See It Through

The parties in negotiation can not only abandon the process without any consequence but can also
refuse the settlement. The parties are not under any obligation to see the process through to the
end and they are not bound by the outcome.

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CONCILIATION
In common parlance, the word 'conciliation’ is used to describe the act of pacifying a situation or
peace making. Conciliation in ADR refers to the settlement of a dispute by mutual and friendly
agreement overseen by a neutral third party known as a ‘conciliator’ with the view of avoiding
litigation. With conciliation, the parties are provided with an opportunity to sit down and reach an
amicable settlement. This method us typically used in employment disputes. To illustrate, section
76 of the Industrial and Labor Relations Act which prescribes conciliation as the appropriate
resolution mechanism for collective disputes.

THE CONCILIATION PROCESS

The first step in the conciliation process is identifying the issues in the dispute. Here, the parties
exchange correspondence (letters) informing each other of their demands and expectations.
Thereafter, the parties sit down and talk with the aim of resolving the matter at hand. This is done
through a 'give and take' process where the parties come to agreement and compromise.

THE ROLE OF THE CONCILIATOR

The main role of the conciliator is to pacify the situation and help the parties reach a settlement.
The conciliator aids in the parties’ arrival at a settlement by assisting them in doing the following:

➢ Identify the issues: the conciliator does this by collecting information from both parties on
behalf of both parties. He or she can also demand from either party any additional
information, evidence or statements if need be.
➢ Develop options: the conciliator presents to the parties the available options depending on
the nature of their dispute
➢ Consider alternatives: the conciliator also brings to the attention of the parties the
alternatives to conciliation. For example, he or she must make it known to the parties that
they can decide to go to litigation if they are unsatisfied with the outcome.
➢ Try to reach an agreement/ settlement: the conciliator’s major role is to facilitate the
parties' attempts to come to a conclusion. That is to say, he or she must do a number of
things that will make the settlement possible. For example, he or she must set up meetings,
decide on the meeting place, ensure that parties effectively dialogue.

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In summary, the role of the conciliator is to reach a settlement and present it to the parties for their
approval or disapproval all the while maintaining utmost neutrality.

TYPES OF CONCILIATION

I. FORMAL CONCILIATION

This type of conciliation is voluntary. It happens as a result of the parties' willingness to meet and
discuss with the help of a third party. It is typically suggested by the parties themselves.

II. INFORMAL CONCILIATION

This type of conciliation is compulsory. It happens not out of the parties' free will but as a result
of a contractual or statutory obligation or a court order.

ADVANTAGES OF CONCILIATION

a) Confidential – There is no obligation on the parties to publicise the information discussed in

the conciliation process.
b) Simple – Due to the process’ informal and simplified nature, the parties are less likely to
struggle in arriving at a settlement.
c) Cost effective – compared to litigation and other ADR methods like arbitration, conciliation
is cheaper.
d) Each case is dealt with on its own merits - The discussions are tailored to the needs of the
parties. Additionally, the selection of conciliators is determined by the conciliator's experience
in a particular field and previous work.

DISADVANTAGES OF CONCILIATION

1. High Possibility of Injustice - the simplistic nature of the conciliation process can compromise
on the fairness. Failure to follow procedural formalities does not automatically invalidate the
outcome of the process. As such, these formalities are often neglected. Sometimes, it is the
conciliator who is responsible for the neglecting the procedures that are originally meant to ensure
impartiality, fairness and equality.

2. High Probability of Miscommunication- The conciliation process is partly characterized by

exchange of correspondence and relevant information through the conciliator. Messages delivered

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through other people are more likely to be diluted or misunderstood thereby causing the parties to
move further away from reaching a mutually acceptable consensus.

3. The Outcomes Are Non-binding - ordinarily, these settlements are not binding. Unless the court
says so.

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MEDIATION
To ‘mediate’ is to intervene in a dispute with a view of helping the disputants resolve it.
Mediation is defined in ADR as a flexible, voluntary and confidential process in which
a neutral third party known as a mediator assists the parties in a dispute to work together
towards a negotiated settlement of their dispute. In this method of ADR, the parties retain
control of their decision on whether or not to settle and on what terms they should settle.
From this definition, five elements of mediation can be deduced. These are:
✓ Flexibility
✓ Voluntariness
✓ Confidentiality
✓ Control
✓ Involvement of neutral third party

In Zambia, mediation previously was a process initiated outside the courts. However, after the
amendment to the High Court Rules in 1997, it became a court annexed process. This change in
the law was made to:

✓ deal with the backlog of cases at high court level

✓ deal with the delays in the dispensation of justice caused by the backlog. This delay in
justice led to denial of justice.
✓ eliminate the increased expenses caused by the delays at litigation
✓ act as an alternative for the long litigations procedures which cause losses to business and
commercial enterprises (e.g. perishable goods)

THE PURPOSE OF MEDIATION

Why mediation?
Although mediation may not always be binding, it still serves a number of significant purposes.
✓ It is a platform for the parties to communicate and bring put their concerns and demands
clearly.
✓ It is a time effective way of resolving disputes. Mediators are under an obligation to avoid
adjournments except when absolutely necessary.

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THE MEDIATION PROCESS
In Zambia, the mediation process begins with a referral from the courts, that is, the courts refer
the matter between the parties to mediation. When this occurs, it means the mediation is court
annexed. After this order from the court, the parties are obliged to see a mediation officer. The
mediator who will be overseeing the dispute settlement will not be imposed on the parties, they
have to agree on which particular officer(s) they will be appointing. Once the mediator(s) is
chosen, their role is to guide the parties to reach a settlement by assisting them understand each
other. The mediation process involves bargaining. It is a give and take process between the
parties. After the parties have discussed, the resolution they come to is known as a settlement.

THE ROLE OF THE MEDIATOR

I. Since the mediator claims authority over the proceedings, they help the parties open up to
each other.
II. They control the interaction and communication in the process.
III. They help deal with any power imbalances that may exist between the parties. This
involves avoiding the seemingly stronger party from taking advantage of the seemingly
weaker party and ensure the settlement is acceptable to both parties.
IV. They help the parties identify their alternatives.
V. They reconnect the parties and preserve their relationship using their training and common
sense.
VI. They encourage the parties to create workable solutions as opposed to coming up with
solutions for them.

CONCILIATION vs. MEDIATION

In conciliation, the conciliator has a duty to resolve the dispute. He/ she intervenes in the
process and gets involved in resolving the dispute. While in mediation, the mediator simply
facilitates the dispute resolution process between the parties.
Conciliation is more formal than mediation. In conciliation, the conciliator arrives at a
settlement to which the parties either agree or disagree. Meanwhile in mediation, the mediator
only reduces to writing what the parties have already agreed. In fact, they can back out of this
settlement at any point before it is registered.

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In conciliation, the conciliator can lend advice and offer suggestions to the parties as they
resolve their dispute as long as the said advice is in accordance with the law. Meanwhile, a
mediator is only there to facilitate the discussions between the two parties and draft what they
decide.
Conciliation is typically used in employment disputes. For instance, section 76 of the
Industrial and Labour Relations Act prescribes conciliation as the default ADR mechanism
for collective disputes. Mediation on the other hand is mostly trusted when it comes to
matrimonial or custody disputes.

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ARBITRATION
Arbitration is an alternative method of dispute resolution which involves the presentation of a
dispute to an impartial third party called an arbitrator who helps parties resolve the dispute.
Arbitration proceedings can be overseen by either one arbitrator or a panel of arbitrators
depending on what the parties have agreed. The role of the arbitrator is to hear the parties' cases
and render a decision known as the arbitral award which is final and binding according to section
20 of the Arbitration Act and a plethora of cases including:
John Kunda vs. Keren Motors
ZCCM vs. Vedanta Resources
Savenda v Stanbic Bank

ARBITRABLE AND NON ARBITRABLE MATTERS

Arbitrable matters are those matters that are can be taken to arbitration according to the
law. Matters will only be taken to arbitration if the law allows. Ordinarily, there are four
main types of disputes that arbitration is used to resolve:
✓ Employment disputes
✓ Disputes arising from commercial transactions
✓ Resolution of litigated claims that get sent to arbitration
✓ Community disputes.
Non arbitrable matters are those that cannot be subject to arbitration because the law
says so. Section 6(2) of the Arbitration Act prevents the following matters from being
sent to arbitration:
❖ Criminal matters (unless the courts allow)
❖ Matters contrary to public policy
❖ Matrimonial causes and matters incidental thereto
❖ Matters against public policy
❖ Maternity and paternity disputes
❖ Matters affecting the interest of a minor.

TYPES OF ARBITRATION
There are two types of arbitration, namely:
O Ad hoc Arbitration

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 O Institutional Arbitration (contractual, judicial, by stipulation).

AD-HOC ARBITRATION
Ad-hoc arbitration proceedings are those which are conducted by the parties when they deem
fit. It is not prescribed to the parties by any person or institution. Also, they are conducted by
individual arbitrators and not by an institution.

INSTITUTIONAL ARBITRATION
Institutional arbitration proceedings are those that are conducted in compliance of some legally
binding obligation. In other words, this is arbitration which occurs because a court, statute or
contract says so. Under institutional arbitration, there are three forms of arbitration, namely:
Contractual Arbitration: this is arbitration that is prescribed by arbitration agreements or clauses
in contracts.
Judicial Arbitration: this is arbitration which is imposed on the parties by the courts. It occurs
where the courts refer the parties to arbitration.
Arbitration by Stipulation: this is arbitration which is required by law. Here, a provision in the
law stipulates that any dispute arising from the certain relationships should be resolved by
arbitration e.g. section 21 of the ZDA Act requires that all investment disputes in Zambia must
be resolved by arbitration.

ARBITRATION PROCEDURE
The starting point of this procedure is one party giving notice of their intention to go to
arbitration. Thereafter, arbitrators are appointed. There is a procedure for appointing arbitrators
in section 12 of the Arbitration Act, however, this procedure is only followed where the
arbitration agreement does not provide a procedure for appointment of arbitrators. Where the
parties attempt to appoint an arbitrator using the section 12 procedure and turn out to be
unsuccessful, they can apply to the court for the appointment of an arbitrator. The caveat here is
that once the court appoints one, the parties cannot appeal against it. This was held in Nubian
Industries vs. Metal Co as well as section 12(5) of the Arbitration Act.
After the arbitrator(s) is selected, the parties sit through a court-like procedure where they
present their cases and submit evidence to the arbitrator who plays the role of the impartial third
party. After that, the arbitrator comes to a binding decision known as the arbitral award.
ADVANTAGES OF ARBITRATION

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1.) The Parties Have Autonomy.
The arbitration process is largely controlled by the parties themselves. This means they are at
liberty to decide on things that will make the process conducive for them to arrive at a desired
outcome. For instance;
✓ Whether or not arbitration will even happen is up to the parties. This decision is made
through inserting an arbitration clause.
✓ The parties have choice of law. This means they can decide what law should govern
the dispute.
✓ The parties can choose where, in terms of geographical location, the arbitral hearing
will be. This location is known as the seat of arbitration.
✓ The selection of arbitrators is done by the parties in accordance with what is in their
arbitration agreement.
2.) The Proceedings Are Confidential
Generally, arbitral awards and the things discussed in arbitral hearings need not be made public
information unless the parties themselves decide. Lending credence to this position is section 27
of the Arbitration Act. This is an advantage especially where the parties would rather their
dispute is not publicized for various reasons.

3.) The Proceedings Are Flexible

Although arbitral hearings mimic court proceedings, they are not as formal as the latter. Arbitral
hearings are not characterized by strict adherence to rules of evidence, admissibility and other
full scale court procedural requirements.

4.) The Proceedings are Time Effective

Due to their flexible and relaxed nature, arbitral hearings tend to consume less time than full
scale court procedures.
5.) The Ordeal is Comparatively Cost Effective
Where it costs less to go to arbitration than it does to go to court, arbitration can be said to be
cost effective.
6.) The Arbitral Award is Binding
The finality of the arbitral award puts the matter to rest preventing further proceedings from
being instituted. It was explained in John Kunda vs. Keren Motors that an arbitral award is

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binding according section 20 of the Arbitration Act and can only be set aside if it falls in the
ambit of section 17.

DISADVANTAGES OF ARBITRATION
Its Binding Nature Locks the Parties In
Considering its binding nature, an arbitration award cannot be appealed against. This is
disadvantageous to the other party who may not be satisfied with it. On the authority of ZCCM
vs. Vedanta Resources and John Kunda vs. Keren Motors, the Courts can only interfere with
the award in those limited circumstances listed in section 17 of the Arbitration Act.

It Can Be Expensive
It is only cost effective if the cost of claiming at court is less than the cost of arbitration.

The Standard is Compromised by Flexibility

In an arbitral hearing, anything, including hearsay and things that would ordinarily be
inadmissible in court, can be taken into account and construed as valid evidence. This can
compromise the efficacy of the arbitral award.

There is Likelihood of Biasness

Although there is a requirement for the arbitrators to be impartial, it may be difficult to eliminate
the biasness.
The Process is not open to the Public.
Because the public is not privy to the proceedings and their outcome, a problem can arise where
there is a power imbalance between the parties. The weaker party can be taken advantage of by
the party with more bargaining power and no one would be present to step in on the former’s
behalf.

LITIGATION VS. ARBITRATION

Among all the alternative methods of dispute resolution, arbitration is the most similar to
litigation because it has a hearing that mimics a court session. However, there are
certain respects in which the two methods differ. They are as follows
In arbitration, the parties have a say on who the neutral third party will be. At litigation,
the third party adjudicating the matter is an officer of the court who is not chosen by
the parties but by the courts.

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 Parties at arbitration are at liberty to choose the law that should be applied on them.
Meanwhile at litigation, the applicable law depends on what the law itself deems fit in
light of the facts.
A court decision cannot, in any circumstances, be altered by an arbitral award while
an arbitral award can be set aside by the court, there are some certain circumstances in
which an arbitral award can be challenged by the courts. These circumstances are those
listed under section 17 of the Arbitration Act. It was explained in John Kunda vs.
Keren Motors that the aim of the courts’ setting aside of an arbitral award was to
preserve the integrity of the arbitration process. It is not the objective of the courts to
review the merits of the award. This was reiterated in KCM vs. Copperfields.

ARBITRATION AGREEMENTS
The phrase ‘arbitration agreements’ is used to refer to clauses in contracts or separate
agreements altogether which stipulate that in the event of a dispute, the parties will first go to
arbitration. As per section 9 of the Arbitration Act, an agreement to arbitrate can either be a
clause in a contract (otherwise known as an arbitration clause or a Scott vs. Avery Clause) or a
separate agreement.
The arbitration agreement should clearly state what type of dispute will go for arbitration. On the
authority of Mechanised Mining Solutions vs. KCM as well as Nyambe vs. Total Zambia
Limited, the parties can only take issues stated in the arbitration agreement for arbitration.
Additionally, it was stated in Nyambe vs. Total Zambia Limited that to determine which cases
go for arbitration, the literal approach should be used to interpret arbitration agreement. Thus, the
arbitration agreement must be comprehensive enough to cover all issues. The purpose of
arbitration clauses is that they save time and reduce costs in the sense that the parties already
know what ADR method they will resort to if need be.

THE EFFECT OF AN ARBITRATION AGREEMENT

Arbitration agreements are binding. When the parties have an arbitration agreement, they cannot
use any other form of dispute resolution. This was held in Cash Crusaders vs. Movers and
Shakers. Where there is an arbitration agreement between the parties, the courts are under an
obligation to order them to abide by the arbitration agreement if they attempt to go straight to
litigation. An arbitration agreement is conclusive evidence that the parties have decided to use

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arbitration and not any other forms of dispute resolution. However, it should be noted that an
arbitration clause can also provide for non-binding agreements.

THE DOCTRINE OF SEVERABILITY AND SEPARABILTY

This is one of the cornerstones or well established customs of arbitration at an international
level. The doctrine states that the arbitration agreement is independent of the contract in
which it is contained therefore it can be separated (severed) from it. Where the arbitration
agreement takes the form of an arbitration clause, the doctrine provides that the clause in
the contract should be considered separate from the main contract and it can therefore be
severed from the contract. Where the agreement takes the form of a separate agreement,
the implication is that this agreement stands independently from the main contract and can
thus be severed from it.
The main idea behind the doctrine is that an arbitration agreement should be able to survive the
termination of a contract. According to this principle, the invalidity of the main contract shall not
have an impact on the arbitration clause. The courts’ rulings in Bomar vs. Mopani Copper Mines
as well as Nyambe vs. Total Zambia supported this position when they held that the implication
of the doctrine is that the invalidity of the contract will not affect the arbitration clause.
It should however be mentioned that according to this doctrine, the clause can only be separated
from a contract that was initially valid but later becomes invalid, that is, where a contract
terminates by lapse of time, death, frustration, breach, etc. The doctrine will not come into play
where the main contract is illegal. This is because an illegal contract is void ab initio and is
considered to never have existed at law. As such, any clause in it or agreement attached to it is
also void as was held in Abdul Aziz Ticklay v Esparanza.

THE ESSENCE OF THE DOCTRINE

The essence of the doctrine of severability and separability is to protect the dispute resolution
method that was initially agreed upon by the parties. If the clause is not separable, the method
chosen dies together with the contract.

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CASE LAW ON ARBITRATION

John Kunda v Keren Motors

Under section 20 of the Arbitration Act, an arbitral award is binding. It can only be set
aside if it meets the circumstances under section 17 of the Arbitration Act. The court went
on say that the purpose of setting aside an award is to maintain the integrity of the arbitration
process. It is not to review the merits of the tribunals decision.

Intermarket Banking Corporation v Nonde Mukanta

In accordance with section 10 of the Arbitration Act, if parties agree to refer their dispute
to arbitration, the court is obliged upon an application of one of the parties to stay the court
proceedings and refer the matter to arbitrations.

Bomar v Mopani Copper Mines

An arbitration clause can survive the termination of a contract.

Elias Chipimo and Another v Bradford Machila

an interim measure will only be granted where the party specifies the remedy sought. NB:
see exceptions under Section 11(4) of the Arbitration Act and also look at Section 14(1) and
(2)(a).

Roraima Data Services v Zambia Postal Service

Where damages are an adequate remedy the court will not grant an injunction.

Zimbabwe Mining Development Corporation v Amaplat Mauritius Limited and

Others
an arbitrator has immunity for anything done during the course of the arbitration
proceedings. (Also in Section 28(1) of the Arbitration Act).

Kenneth Van der Westherzen v Rota Rebels

In accordance with section 10 of the Arbitration Act, a party can at any stage of the court
proceedings make an application to the court to refer the case to arbitration and the court
has to stay proceedings and refer that case to arbitration.

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Powells Construction Limited and Others v Inyatsi Construction Limited
The objective of the Arbitration Act is pinned in its preamble, that is, to redefine the
supervisory role of the courts. Thus, the act was made to restrict the courts role in the
arbitration process unlike the previous Arbitration Act which gave the court unfettered power
to interfere with the process.

Mechanised Mining v Konkola Copper Mines

Only matters referred to in the arbitration agreement can be dealt with by arbitration. This
was also the position in Nyambe v Total Zambia limited.

Abdul Azziz Ticklay v Esparanza

Under Section 10 of the Arbitration Act, if the agreement in which the arbitration clause
subsists is null and void then that case cannot be sent to arbitration. NB: this case shows that
the doctrine of separability and Severability does not apply to void contracts. It only applies
to voidable contracts or contracts that have terminated through breach of contract,
frustration, death and lapse of time.

Hotelier Limited v Eastern and Southern Corporation and Development Bank

It was held that the courts power to exercise interim measures should be granted in
accordance with Section 11(4) of the arbitration act. # also read Section 14(1) and (2)(a) of
the Arbitration Act.

Kakompe v Nonde Munkanda

An arbitral award is against public policy if it goes against public good, public morality, is
against justice or is against acceptable moral standards.

Mobil Oil v Malawi Petroleum

An incomplete award cannot be registered because it is not valid.

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 CHAPTER SEVEN

INTRODUCTION TO MED-ARB
Med-arb refers to the combination of the two popular methods of ADR mediation and
arbitration. It occurs where the parties agree to start to resolve their dispute using mediation
and if mediation fails they automatically go to arbitration. In this process, the parties agree
that if they managed to settle at mediation stage, they will reduce their resolution to a consent
order which will bind both of them. This method is also used to automatically take issues
that were not resolved at mediation to arbitration.

Essentially, it is a two-stage mechanism in which the parties can choose to give the mediator
powers to automatically convert to being the arbitrator should mediation fail. Where there
are two independent experts, the process allows for the parties automatically change their
neutral third party. The essence of amalgamating both processes is to deal with the problem
of mediation not giving a sense of finality due to its non-binding nature.

FORMS OF MED-ARB

There are four main forms of med-arb which have their peculiar features. They are:

A.) Overlapping Neutrals

This is the type of med-arb where two neutrals are appointed to resolve the dispute at hand.
One will mediate at the mediation stage and the other will be the arbitrator should mediation
fail. The disadvantage of this method is that it is not cost effective because it involves the
engagement of two (2) experts for both processes.

B.) Plenary Med-Arb

This is the type of med-arb where there is a single neutral party who initially plays the role
of the mediator and where mediation fails automatically assumes the role of the arbitrator.
Because this same expert becomes the person who makes the decision later on, he is not
allowed to conduct private or individual caucuses (meetings) with the parties. The
disadvantage of this form of med-arb is that the parties usually refrain from disclosing
important information to the neutral third party at the mediation stage due to fear of having

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that information used against them at the arbitration stage. This defeats the purpose of the
two-stage process.

C.) Braided Med-Arb

This is the form of med-arb which has one neutral party like plenary med-arb. The difference
here is that the parties are free to interrupt the proceedings and explore the other stage using
the same third party. In this type of med-arb, the parties can oscillate between the mediation
and arbitration at any time using the same third party each time they transition. This is subject
to them entering a voluntary agreement.

D.) Med-Arb with Optional Withdrawal.

This is the form of med-arb where the parties have the option to opt out of the two stage
process even when there is no outcome at the mediation stage. This withdrawal aspect
eliminates the assurance of finality in the med-arb process. What usually happens after
withdrawal is that the parties must commence a new dispute resolution mechanism (usually
litigation). A major disadvantage of this form of med-arb is that it is not cost and time
effective as the two stage process and the subsequent litigation have to be paid for and they
consume time.

OVERALL ADVANTAGES OF MED ARB

➢ It saves time if same expert is used at both stages.

➢ The parties can call for arbitration within the mediation process without having to
look for another expert.
➢ The arbitrator, having previously assumed the role of a mediator, makes a decision
which is more informed because he is familiar with the parties' individual
circumstances.
➢ The settlement at the mediation process can be recorded as a final award.
➢ In med-arb, the parties are motivated to settle at mediation where they are at liberty
to agree as opposed to proceeding to arbitration where there will be a binding award
which can only be set aside in certain circumstances.

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OVERALL DISADVANTAGES OF MED ARB

➢ Having overseen the mediation process and made privy to the full disclosure, the
neutral third party’s impartiality might be affected at the arbitration stage where he
or she has to make a decision on behalf of the parties.
➢ The parties may tend to avoid disclosing full information at the mediation stage
fearing that it may be used against them at the arbitration stage.
➢ One party may gain an undue advantage over the other at arbitration using
information disclosed at the mediation stage.
➢ In med-arb, the parties can agree to make their mediation settlement have the
binding effect of an arbitral award. The problem here is that such an award can be
challenged on grounds of public policy which, according to Kakompe v Nonde
Munkanda, suffices where the award offends public morality and justice.
Irregularity or lack of due process at the mediation stage can give rise to this ground.

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 CHAPTER EIGHT

INTERNATIONAL COMMERCIAL ARBITRATION

In its current form, international commercial arbitration is concerned with resolving disputes
that arise from commercial transactions between nationals of different countries. The law which
governs international arbitration is known as the UNCITRAL Model Law or the UNCITRAL
Arbitration Rules. These rules provide a comprehensive set of procedural rules upon which
parties may agree for the conduct of arbitral proceedings arising out of their commercial
relationship.

SOURCES OF NORMS
Norms refer to the rules and expectations of a given procedure. There are certain norms that
are used to govern the international arbitration process. These norms derive their authority
from various sources which are:

International Conventions Relating to Arbitration

These are those agreements entered into by different countries who agree to be bound by them.
These conventions contain various rules and principles from which the norms that govern
international arbitration are derived. Examples of these conventions are:
➢ The New York Convention
➢ The Geneva Convention.

National Arbitration Laws

These are National laws that speak to arbitration. Parties may elect to be governed by
principles from these laws. An example would be if two parties agree to be governed by the
Zambian Arbitration Act.

Arbitration Agreements
These refer to arbitration clauses in contracts or separate agreements which bind the parties to
arbitration in the event of a dispute. In these agreements, the parties can include details of how
the arbitration will go contains rules which can govern the procedure and principles of the
arbitration proceedings.

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Arbitration Rules
These refer to the rules that are set up by arbitral tribunals in ad hoc arbitration and
institutions in institutional arbitration. Principles and rules of procedure are taken from these
rules when dealing with international arbitration. Examples of these rules are:
➢ The UNCITRAL Model Law
➢ The rules set forth by the Chartered Institute of Arbitrators

International Arbitration Practice/ Customs

These are those long established practices or customs that have been accepted world over when
dealing with arbitration. They are a valid source of norms as certain rules of practice and
procedure can be derived from them. Examples include:
➢ The doctrine of severability and separability
➢ Criminal matters and matters to do with human rights not being arbitrable.
[MEMORY AID: A2 1 2 N]

SOURCES OF CONFLICTS IN INTERNATIONAL ARBITRATION

What gives rise to conflicts in international commercial agreements?
✓ Personal clashes
✓ Personal problems
✓ Pressure points
✓ Panicking
✓ Previous Experiences
✓ Protection Responses

FOCAL POINTS OF INTERNATIONAL ARBITRATION

These refer to the essential elements in that should be present in int'l arbitration procedures. They
include:
Law
There should be a law governing the international arbitration process. The parties are free to
choose the procedural rules guiding their disputes. It may refer to the arbitration rules
applicable in the place of arbitration. This principle is expressed in the Latin phrase Lex abitri
kompetenz kompetenz.

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Order
The proceedings should be organized.

Discretion
The parties' and Arbitrators' discretion must be clearly stated. The arbitration agreement must
clearly state what is up to the parties and what is up to the arbitrator.

Terms of Reference (TOR)

The process must have terms of reference to guide it.

Discovery
The relevant documents must be presented to all the parties involved. This is known as
discovery.

Confidentiality
The process must be confidential. The proceedings and the award are not automatically public
knowledge.
[MEMORY AID - LOCD2 TOR]

What is the Effect of an International Arbitral Award?

According to the New York Convention, an award made in one signatory party shall be
binding in all signatory countries.

TYPES OF ARBITRAL AWARDS

✓ Domestic Award
✓ Foreign Award
✓ Interim Award
✓ Accruing Award
✓ Agreed Award
✓ Partial Award.
The onus is on the reader of this document to research on what each of these things means. Lest
the exam will find one wanting.

End.

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