Further to our previous five posts (Part 1, Part 2, Part 3, Part 4 and Part 5) on the use of ADR in Africa we now feature in the final part the responses from South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia and Zimbabwe to the question: are parties to litigation or arbitration required to consider or submit to alternative dispute resolution before or during proceedings?
Since South Sudan seceded from the Sudan, much has been anticipated in relation to alternative dispute resolution. Traditional conflict resolution based on customary law plays a considerable part in dispute and conflict resolution in South Sudan. Much of this covers family law and crime. Offences such as adultery, slander and defamation are compensated traditionally, eg, by paying the aggrieved party in cattle, sheep or goats or by simply giving an apology. On the other hand, crimes as serious as murder could be settled through payment of dia or replacement of a human victim by another human being from the aggressor.
Parties to litigation or arbitration are not required by law to consider or submit to alternative dispute resolution before or during proceedings. However, where there is an arbitration the parties may all agree to go to conciliation first with the same arbitrators. If no agreement is achieved then the formal arbitration is followed.
In litigation the judge may ask the parties to sit together and try to reach settlement. This relies on the parties’ willingness to attempt this. There are no costs sanctions if they fail to attempt to reach settlement in this way.
Parties to arbitration and litigation are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties. This goes for both cases heard by the Conciliation, Mediation and Arbitration Commission (CMAC) and other cases of a private nature (eg, contracts).
In respect of litigation, after the first pre-trial conference, the file is returned to the judge or magistrate in charge to assign it to a mediator. Mediation is court-administered and has proved very effective especially for commercial cases. If mediation fails then the court returns the file to the judge in charge for a trial judge to be assigned the case. The mediator is precluded from handling the trial.
There is no requirement for arbitrating parties to consider or submit to ADR before or during proceedings.
All applications are exempt from preliminary conciliation unless the law provides otherwise (which is rare). Nevertheless, the court may seek to achieve conciliation between the parties.
Conciliation is mandatory before the District Courts and Labour Tribunals and in family matters (divorce, etc). There are no other mandatory ADR provisions.
Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless an agreement requires this.
In relation to litigation, in the Commercial Court it is mandatory after closure of the pleadings to refer matters to court-annexed mediation. This is conducted by court-accredited mediators, usually advocates or registrars of the court. The mediation period lasts 21 days but may, with the consent of the parties, be extended. It is only where the mediation fails that the judge will set down the issues for trial, for the matter to be tried by another judge. The reference to ADR is regarded as attractive by other divisions of the High Court and it is gradually being adopted.
There is no requirement for parties to arbitration to consider or submit to alternative dispute resolution before or during proceedings.
In the case of litigation it is possible for parties to be referred to mediation. The High Court Act provides that, except in cases involving constitutional issues, the liberty of an individual, an injunction or where the trial judge considers the case to be unsuitable for referral, every action may, upon being set down for trial, be referred by the trial judge for mediation. However, where mediation fails the judge proceeds to fix a hearing date.
There is no public record of cases settled through mediation. However, it is estimated that 10-20% of cases referred to mediation result in a settlement.
The courts may recommend alternative dispute resolution to the parties but they cannot be compelled to attempt it unless there is a legally enforceable agreement to that effect. The High Court of Zimbabwe in its Practice Direction provides for mandatory pre-trial conferences, which parties must hold before proceeding to trial. Such pre-trial conferences are designed to accommodate alternative dispute resolution and curtail the continuation of litigation.
There is no requirement for parties to arbitration to attempt ADR.