This is a continuation of our discussion of the various forms of Alternative Dispute Resolution also commonly referred to ADR.
The main forms of alternative dispute resolution include:
- Negotiation
- Arbitration
- Mediation
- Conciliation
Negotiation
This is a back-and-forth communication between parties designed to reach an agreement. The object of negotiation is to ultimately achieve a durable agreement as efficiently as possible with least damage to parties' relationship. This in turn entails that parties should meet each other's legitimate interests to resolve the parties' conflicting interests fairly. The first step would be diagnostic in nature. Each party seeks information about each other's position and identifies the issues. Next parties identify their respective interests in search for a common ground. Lastly parties confirm their negotiated gains, draft final agreements or confront deadlocks. The main objective is to afford all parties protection of their interests in a manner that preserves a working relationship between the parties. What is critical to note about negotiation is that it is not binding.
Arbitration
Arbitration in Zimbabwe is governed by the Arbitration Act (Chapter 7:15).
Parties can engage in arbitration where there is an arbitration agreement or where parties can agree to settle by way of arbitration. An arbitration agreement is defined in Article 7 of the Arbitration Act as "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement."
When there is an arbitration clause contained in the agreement, parties when faced with a dispute cannot then revert to court process. Parties are bound to refer their matter to arbitration.
This is more analogous to litigation. Proceedings are presided over by an impartial arbitrator. Parties present their case to the arbitrator and the arbitrator decides in favour of one of the parties. The active decision making by the arbitrator is the distinguishing factor between arbitration and the other forms of ADR. With other forms of ADR the impartial 3rd party does not play such an active part in the decision reached. The arbitrator reaches a binding decision for the parties. According to Article 35 of the Arbitration Act the decision which is called an Arbitral Award "shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to the provisions of this article and of article 36."
Arbitration is particularly appropriate in commercial disputes.
Conciliation
In these proceedings the 3rd impartial party is called a conciliator. The conciliator helps the parties to find each other to resolve the dispute. Unlike with the decision of the arbitrator, the conciliator's input is not binding but just persuasive. Conciliation is prevalent in labour matters.
Mediation
This is seldomly used in Zimbabwe but is proved to be effective in other jurisdictions. This is an amicable avenue for settlement of disputes with the assistance of a neutral 3rd party. The 3rd party has more influence than in conciliation and these recommendations become binding if parties agree. This form of ADR is utilized in legal disputes involving religious organizations and in family disputes.
ADR encourages parties to reach amicable resolutions without burning bridges and allowing each party to leave the table with their interests protected in one way or the other.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
