INTRODUCTION

In the advent of the ever growing concern regards the slow and often times costly litigation
process most lawyers are taken up the use of Alternative Dispute Resolution (ADR) as recourse
to resolve their clients disputes, it is therefore in that regard that this paper will discuss the afore
mentioned recourse explaining the process of enforcement and finally the role played by a
lawyer in the due process.

DEFINATION Alternative Dispute Resolution (ADR) refers to processes in which a third party
neutral assists those in a dispute to resolve issues between them. These processes operate as an
alternative to litigation and their raise has been due to the costs involved in litigation, the slow
pace at which certain cases drag on and the lack of control over the outcome by the disputants in
litigation. Accordingly ADR is premised on the principle of consensus. It is non-authoritarian
and operates within the structure of a specific community according to the structure of the
community’s prevailing norms western societies have in the last twenty years or so come to
appreciate the necessity for assess to justice through ADR techniques based on the so called ‘co-
existential justice’ or the process for conciliatory solutions.1

CATEGORIES OF ALTERNATIVE DESPUTE RESOLUTION

Broadly speaking they exists two categories of ADR under which the available types fall:

A) ADJUDICATORY OR DETERMINATIVE: As the name clearly shows this procedure

involves the neutral deciding on behalf of the disputants with the decision passed being binding
on the parties examples under this being Arbitration, adjudication among others.

B) NON-ADJUDICATORY OR FACILITATIVE: An example under this is mediation and in

this category the neutral helps the disputants to negotiate an agreement without adjudication or
deciding on their behalf.2

TYPES OF ALTERNATIVE DISPUTE RESOLUTION

Mediation, Early neutral case evaluation, Arbitration, Settlement conferences, Facilitation,

Consensus building, Summary Jury trial, Fact finding Expert, Med Arb, Private Judging,
Adjudication, Last offer Arbitration are among the many available procedures in ADR.

However in Zambia the above mentioned are not all available accordingly this paper will only be
limited to the few procedures that are practiced in Zambia.

1
Peter Erasmus (1999) Paper presented at the Mulungushi International Conference Center on Arbitration in
Zambia, pp3-4
2
Caroline Harris (2001) ‘The ADR Act of 1998’: Implement a New Paradigm of Justice 76 New York University L.R at
p1768

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MEDIATION
This is a process of negotiation facilitated by a neutral third party called a mediator. His job is to
have the disputants communicate their position on the issues relating to the dispute and in
exploring possible solutions to reach consensus, thus a mediator can rightfully be said to be a
mere facilitator who does not go as far as deciding on behalf of the disputants it is because of this
that Mediation is said to be non-binding on the parties and it is thus for the parties themselves to
reach a settlement.
Mediation as a process is said to focus on ‘interests of parties and not on their rights which helps
them to reach consensus.
The process is less formalized and is not governed or regulated by rules of procedure as the case
is in litigation thus they is no burden of proof laid on anyone be it on a balance of probabilities
or beyond reasonable doubt, as the case maybe neither are the rules of evidence expected to be
adhered to.
In Zambia the process of mediation is “court annexed” i.e. it is triggered by a court process (in
other countries it may be undertaken without a court requiring the parties to try mediation). Thus
O.31 r.4 states “Except for cases involving constitutional issues or the liberty of an individual or
an injunction or where the judge considers the case to be unsuitable for reference, every action
may, upon being set down for trial, be referred by the judge for mediation and where mediation
fails, the judge shall summon the parties to fix the hearing date.”3 Mention must be made here
that a judge may only refer a matter to mediation with the consent of the parties or their counsel.
He can’t force mediation on them. Mediation and Conciliation
. One significant difference between conciliation and mediation lies in the much debate has
focused on the distinction between conciliation and mediation, and no universal agreement has
emerged. "Conciliation" sometimes serves as an umbrella-term that covers all mediation and
facilitative and advisory dispute-resolution processes.

[1] Neither process determines an outcome and both share many similarities. For example, both
processes involve a neutral third-party who has no enforcing powers fact that conciliators
possess expert knowledge of the domain in which they conciliate. The conciliator can make
suggestions for settlement terms and can give advice on the subject-matter

Both mediation and conciliation serve to identify the disputed issues and to generate options that
help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible
processes; and any settlement reached should have the agreement of all parties. This contrasts
with litigation, which normally settles the dispute in favour of the party with the strongest
argument4

3
The Judicature Act Order 53
4
Wikipedia

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Mediation Procedure
The mediator usually starts with a joint session that is attended by the parties and their
representatives. At the joint session, issues in dispute are highlighted by the mediator and ground
rules (e.g. confidentiality and maintaining civility) are set out. After this the mediator has
individual sessions with each of the parties in turn. These private sessions (sometimes called
“caucuses”) help the parties in being more forthcoming with their ideas and suggestions than
they may be in the presence of the other party. If an agreement is reached, it is recorded in a
written form and signed by the parties. It then becomes a consent judgment that can be enforced
in court
ARBITRATION

This is a legal technique for the resolution of disputes outside the courts where in the parties to a
dispute refer it to one or more persons the ‘arbitors,’ ‘arbiters’ or ‘arbitral tribunal’ by whose
decision (the award) they agree to be bound Arbitration uses rules of evidence and procedure that
are less formal than those followed in trial courts, which usually leads to a faster, less-expensive
resolution. In the United States of America there are many types of arbitration in common use:
Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose
a decision, although this is sometimes limited by agreement -- for example, in "hi-lo arbitration"
the parties may agree in advance to a maximum and minimum award. In non-binding arbitration,
the arbitrator can recommend but not impose a decision. Many contracts -- including those
imposed on customers by many financial and healthcare organizations -- require mandatory
arbitration in the event of a dispute. This may be reasonable when the arbitrator really is neutral,
but is justifiably criticized when the large company that writes the contract is able to influence
the choice of the arbitrator.

However in Zambia, The Arbitration Act stipulates under section 6 which matters can be taken
to Arbitration it provides

Subsection (2) Section.6 (1) states that “Subject to subsections (2) and (3) any dispute which
the parties have agreed to submit to arbitration may be determined by arbitration.”
gives exceptions
(a) An agreement that is contrary to public policy
(b) A dispute, which, in terms of law, may not be determined by arbitration such as winding
up of a company which can be done in the High Court.
(c) A criminal matter, unless permitted by written law or court grants leave.
(d) A matrimonial cause.
(e) A matter incidental to a matrimonial cause e.g. maintenance or custody, unless by leave
of the court.
(f) The determination of paternity, maternity or parentage of a person.
(g) A matter affecting the interests of a minor or a person under legal incapacity unless a
competent person represents such minor/person.5

5
The Arbitration Act of 2000

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Section 10 - a court is obliged to stay proceedings and refer the parties to arbitration if there is an
arbitration agreement unless the court finds that such an agreement is null and void, inoperative
or incapable of being performed.6
Section 11 - Notwithstanding Section.10, the court under Section.11 may, on application by any
of the parties in the matter that is subject to arbitration, grant the following orders:
(a) An order for the preservation, interim custody, sale or inspection of any goods that are
the subject matter of the dispute.
(b) An order securing the amount in dispute or the costs and expenses of the arbitral
proceedings.
(c) An interim injunction or other interim order; or
(d) Any other order to ensure that an award, which may be made in the arbitral proceedings,
is not rendered ineffectual 7
The Arbitration Process
For a dispute to be referred to arbitration, the contract between the parties must contain an
arbitration clause to that effect. However, even if it doesn’t, the parties can enter into an ad hoc
arbitration agreement which they sign agreeing to refer their dispute to arbitration
The next stage is to appoint an arbitral tribunal in accordance with Section.12 of the Act. In
general the tribunal is appointed through one of the following ways
(a) By direct appointment by the parties
(b) In a three-person tribunal, each party appoints one arbitrator and these two then appoint
the third (the chairman).
(c) By an appointing authority
(d) By a competent court.
In the event that the parties fail to agree on the procedure of appointing the arbitration tribunal
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Section 12(3) - states that the appointment shall be as follows:
(a) In arbitration with three arbitrators, each party appoints one and these two appoint the
third. If (a) a party fails to appoint its arbitrator within 30 days of receipt of a request to
do so from the other party or (b) if the two arbitrators fail to agree on the third within 30
days of their appointment, then the appointment shall be made upon request of a party by
an arbitral institution. This decision is not subject to appeal.
(b) In arbitration with a sole arbitrator, if the parties are unable to agree, the arbitrator is
appointed, upon request of a party, by an arbitral institution.
Section.12(4) - if there is failure even by the arbitral institution, in appointing the arbitral
tribunal, any party may request the court to take the necessary measures to secure the
appointment of the tribunal and the court’s decision is not subject to appeal. 9

6
ibid
7
ibid
8
ibid
9
ibid

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NEGOTIATIONS
This defined as the process which is used to satisfy our needs when someone else controls what
we want.10 Often disputants will sit down to discuss so as to reach a compromise or work out an
understanding. Due to this, Negotiation is seen to be the simplest and quickest way to settling
commercial disputes mainly because a dispute is best known and understood by the parties and
they are better placed to know how to go about in reaching a solution.

ADJUDICATION
This involves disputants bringing in an expert or experts who are or who is independent and are
chosen due to their appropriate expertise in a given field. Adjudication is accordingly a quick
process because it involves exchange of written submissions that are followed by a hearing.
This procedure has the advantage of parties benefiting from the knowledge shared by the experts

NEUTRAL FACT FINDING EXPERT

This procedure in ADR involves disputants appointing a neutral technocrat to investigate facts of
a legal or technical matter, his or her job is to carry out fact finding after which compel a report
that is submitted with recommendations on a settlement. 11

The Award
Under Section16 (1) of The Arbitration Act No19 of 2000 states that the award shall be in
writing and shall be signed by the arbitrator(s). In arbitral proceedings with more than one
arbitrator, the signature of the majority of the members shall suffice provided that the reason for
any omitted signature is stated.
Section.16 (2) states that the award must state the reasons upon which it is based unless the
parties agree otherwise. The award must also state the date and place of the arbitration at which it
shall be deemed to have been made. After the award is made, a copy signed by the arbitrator(s) is
delivered to the parties on request by any party (within 30 days?) an award may be corrected or
interpreted by the arbitrator. The arbitrator can also correct the errors at his own instance or
initiative. 12
Types of Award
An award may be:
Interim: this award is a determination of an issue during the course of arbitral proceedings e.g.
(a) an interim injunction;
(b) An order for the deposit of the fees, costs and expenses of the arbitration,
(C) and interim measure for protection in respect of the subject matter of the dispute. .
Partial: like an interim award, a partial award is a determination of an issue during the course of
the arbitral proceedings which may result in the parties saving time and money.
Final: this is an award that completes the mandate of the arbitral tribunal. Once it is delivered,
the tribunal becomes “functus officio” i.e. it ceases to have any further jurisdiction over the
dispute and the relationship existing between the arbitral tribunal and the parties during the
currency of the arbitration comes to an end. There is however, one exception, i.e. when the

10
Robert Maddux (1988) Successful Negotiations, Pg14
11
Winnie S. Mwende Research Paper on ADR, Pg 53
12
The Arbitration Act of 2000

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arbitral tribunal is requested by the parties (or one of them) to correct clerical errors in the award
OR interpret the award OR make an additional award.

Recourse against an Award

Section 20(1) of the Act provides that an award rendered by an arbitrator is final and binding on
the parties as the only recourse is to set it aside pursuant to Section.17 (2) of the Act.13 This
gives instances when an award can be set aside (by applying to a court).

ENFORCMENT IN ADR
Section 18 of the Act states that a court shall recognize an arbitral award as binding regardless of
the country in which it was. The party in whose favour the award is made must file it in court for
it to be recognized and enforced. Recognition alone is sufficient if the loosing party willingly
pays the amount awarded to the successful party. If he is unwilling, the successful party must
enforce the award. Recognition and enforcement of an arbitral agreement may be refused upon
the grounds set out in Section.19, which are identical to those above in Section. 1714 which
maybe used to set aside an award

Enforcement of Foreign Arbitral Awards

The New York Convention
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards is in the
second schedule of the Act. Article 2 states that each contracting party (includes Zambia) shall
recognize such awards as binding
It imposes a mandatory obligation on contracting States to stay judicial proceedings involving
disputes which are a subject to contracting states to stay judicial proceedings involving disputes
which are a subject of arbitration agreements as defined in the convention and also provides for
the International enforcement of arbitral awards.
Article 515 of the Act stipulates that recognition may be refused on the grounds set out in which
are the same grounds as in Section.17 and Section.19 above.
ROLE OF A LAWYER IN ADR
ADVISE: As counselor the first role is to advise client(s) on the best mode or process of
litigation putting into consideration the nature of the dispute as already indicated not all matters
can be resolved through ADR, then the remedy sort and how quick the disputants want the
matter resolved, thus once all matters considered the lawyer will advise on the available
procedures of ADR and the best mode for the dispute
Look for an Arbitrator or mediator (if procedure adopted) putting into consideration the chances
of impartiality, professionalism by the available individual(s) or institutions that are involved in
ADR proceedings. Under Section 12(6) of the Arbitration Act of 2000 the qualification of an
Arbitrator are stipulated.
Attending meetings and make available all documents (if required) during the process of
resolving the dispute. Were for example Arbitration is used a Lawyer will have to

13
Ibid
14
ibid
15
New York Convention on Arbitral Awards

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Where an award is granted and one the parties wishes to set it aside then recourse will be taken
in accordance with Section 17 of the Arbitration Act of 2000 and a lawyer plays a pivotal role
in ensuring that the necessary paper work and procedure is followed in pursuing that course.

CONCLUSION
Indeed ADR potently shows to be more to the advantage of disputants due to the various reasons
as given on page one of this paper and accordingly its use must be encouraged among lawyers
and advised to clients as an alternative to resolving of disputes to ensure a prompt, cheaper and
more controlled solution.

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 BIBLOGRAPHY
BOOKS

Maddux R.B, Successful Negotiations- Effective “Win-Win” Strategies and Tactics, 3rd Edition,
Crisp Publication Inc

STATUTE

Arbitration Act of 2000

CONVENTIONS

Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958

RESEARCH PAPER

Winnie Sithole Mwende (2006) Paradigms of Alternative Dispute Resolution and Justice
Delivery in Zambia Unpublished Thesis for PHD to the University of South Africa.

Caroline Harris (2001) Implementing a New Paradigm of Justice, 76 University of New York LR

ACADEMIC ARTICLES AND PAPERS

Peter Erasmus (1991) Adopting the AFSA Arbitration Experience for Zambia and Zambian
Legislation , Paper presented to the National Convention on the Revitalization of Arbitration in
Zambia held at Mulungushi International Conference Center on 20th August, 1999

The use of Alternative Dispute Resolution (ADR) in Maryland Business A benchmark study
2004 done by the Maryland Mediation and Conflict Resolution Office

INTERNET SOURCES

http://en.wikipedia.org/wiki/ADR

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