arbitration insights:WITH JACOB MUTEVEDZI
The predominant method of resolving disputes in Zimbabwe is litigation. Generally, litigation has a fearsome reputation of being emotionally and financially taxing. The procedures involved are complex and protracted. Court cases have been known to drag on for days on end. As a result of its complexity and customarily long drawn-out nature, lawyers inevitably charge exorbitant fees for handling litigation.
It is therefore unsurprising that alternative methods of dispute resolution have evolved to circumvent the usual pain associated with litigation. Access to justice, therefore, goes beyond access to courts of law. There is an assortment of pathways to resolve disputes without the intimidating formality, cost and complexity of litigation.
An increasing number of parties to disputes are turning to alternative dispute resolution. This involves a third party offering professional and impartial assistance to get to a resolution that is acceptable to all the parties involved. Alternative dispute resolution is so flexible that it can be employed to resolve almost any kind of contention; including disputes that cannot ordinarily be resolved by the courts.
The benefits of alternative dispute resolution are plentiful. It is flexible enough to be tailor-made to parties’ needs. Further, not only is the rigid formality which pervades litigation markedly absent, there is potential for the people involved to play a more significant role towards the outcome of their dispute.
In a world where everyone is trying to poke their noses into your business, alternative dispute resolution processes and outcomes are usually private and confidential. More importantly, alternative dispute resolution is, for the most part, self-directed. Parties get to choose the alternative dispute resolution practitioners they like and delineate terms of reference. In litigation, on the other hand, what judges and magistrates can do is based on the law. Further, alternative dispute resolution allows the parties to determine the outcome of the process. In litigation the courts determine the outcome. With alternative dispute resolution you may opt to proceed without a legal practitioner’s assistance. Litigation can be extremely difficult, if not insurmountable, without legal representation.
Court processes only allow you to raise issues that are connected to your legal rights but alternative dispute resolution permits you to raise any issues that you need to be determined. In addition, alternative dispute resolution processes and outcomes place emphasis on what is important to the parties. Courts focus on legal rights. Thus more often than not, the outcome in an alternative dispute resolution process can be a mutually beneficial settlement. In litigation the outcome will be a court judgment at the expense of one of the parties.
In Zimbabwe, the most common methods of alternative dispute resolution are mediation, conciliation and arbitration. In other jurisdictions methods like negotiation, neutral evaluation and settlement conferences are hugely popular.
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Mediation is a process where a neutral person called a “mediator” assists the parties to attempt to reach a mutually acceptable resolution of the dispute. The mediator’s role is not to decide the dispute but to assist the parties to communicate with a view to settling the dispute themselves. Control of the outcome is left to the parties.
Conciliation is a process in which the parties to a dispute, with the aid of an impartial person called the “conciliator”, identify the contentious issues, develop options, take alternatives into account and attempt to reach an agreement. The conciliator has no deciding role on the content of the dispute or the outcome of its resolution but may advise on or determine the process of conciliation. Further, the conciliator may suggest settlement terms and actively encourage the parties to reach an agreement which is consistent with the law.
Arbitration is a process where the parties present arguments and evidence to a non-partisan third party, the “arbitrator”, who makes a determination.
Arbitration can be particularly worthwhile where the subject matter is highly technical, or where the parties seek greater privacy and confidentiality than in an open court. It may be voluntary, ordered by the court or contractual. Compared to mediation and conciliation, arbitration is often a much more formal and structured process. It is in a number of ways more akin to litigation, because at the end of the process the arbitrator makes a binding decision.
In Zimbabwe arbitration may be either voluntary or compulsory. Voluntary arbitration, which is widely used to resolve commercial disputes, is regulated by the Arbitration Act [Chapter 7:15]. Compulsory arbitration, which is exclusively concerned with employment disputes, is regulated by the Labour Act [Chapter 28:01].
Alternative dispute resolution is, therefore, a growing trend in the global legal landscape that can lead to quicker resolution of disputes, along with preservation of business relationships that involved parties might not want to ruin. It is an option that definitely has to be explored to avoid litigation which often turns out to be time consuming, costly and, of course, adversarial.
l Jacob Mutevedzi is a commercial lawyer and partner at Clairwood Chambers Attorneys and writes in his personal capacity. He can be contacted @ [email protected]
