Further to our previous two posts (Part 1 and Part 2) on the use of ADR in Africa we now feature in part 3 the responses from Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya and Lesotho to the question: are parties to litigation or arbitration required to consider or submit to alternative dispute resolution before or during proceedings?
All parties bringing civil actions brought before the courts must first undertake conciliation proceedings before the relevant municipal court. The tribunaux de paix offers civil conciliation and mediation services.
There is no such requirement under the laws of Eritrea.
Presently, there is no requirement for the parties to submit to any alternative dispute resolution before or during proceedings under the laws of Ethiopia.
Proceedings are not subject to any mandatory prior conciliation unless the law provides otherwise (article 425 of the Civil Procedure Code). For example cases involving payment orders or labour disputes are subject to a mandatory mediation procedure.
Beyond this, parties may engage in mediation or conciliation either of their own accord or as ordered by the court at any point in the proceedings (articles 425 and 426 of the Civil Procedure Code).
The ADR Act 2005 provides for court-facilitated ADR. The court may refer any matter or part of any matter to ADR (arbitration, conciliation and mediation are provided for in the Act). Parties may also agree to have their matter referred to ADR at any time before judgment is given.
Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless an agreement requires that of the parties. For example, a dispute resolution clause in an agreement might require the parties to engage in pre-arbitration ADR.
With respect to litigation commenced by writs in the Commercial Division of the High Court, there is a mandatory 30-day mediation by a judge, when pleadings close. Only where the mediation fails will the judge set down the issues for trial. The matter is tried by another judge.
Parties are not required to undertake preliminary conciliation proceedings in Guinea, save where the law provides otherwise (articles 443 and 444 of the Guinean Civil, Economic and Administrative Procedure Code). Certain courts must attempt conciliation in disputed matters.
The parties may also undertake conciliation of their own volition or on the initiative of the court at any stage of the proceedings (article 445 of the Guinean Civil, Economic and Administrative Procedure Code).
In both situations there is no legal requirement to submit to any alternative dispute resolution before or during proceedings, unless the parties enter into an express agreement.
The Civil Procedure Rules allow for any litigating party to apply to have a matter referred to arbitration. Court-assisted settlement exists under the Civil Procedure Rules and the court may at any time before judgment have parties refer a dispute to arbitration. The Rules do not mention other modes of alternative dispute resolution but indicate that the court shall not be limited to arbitration.
Negotiation and mediation are employed as alternatives to formal dispute resolution but these practices are not as widespread as arbitration. The Chartered Institute of Arbitrators, Kenya, has a list of accredited mediators who are suitable for specific disputes.
The Court-Annexed Mediation (CAM) Programme was introduced into Lesotho’s judicial system through the Mediation Rules of May 2011. CAM was officially launched in June 2011 and became operational in August 2011. Under CAM, parties to litigation are required to consider mediation and in most High Court cases reference to mediation is obligatory. To date, however, it is unclear whether or not such references have expedited litigation or brought about early settlement.
There is no requirement on arbitrating parties to attempt ADR unless they have contractually agreed to do so.