We asked local counsel in 21 African jurisdictions whether parties to litigation or arbitration were required to consider or submit to alternative dispute resolution procedures before or during proceedings. Below is a summary of the position in each country.

Angola

There is no legal requirement to submit to any alternative dispute resolution before or during court or arbitral proceedings, unless the parties enter into an express agreement.

Botswana

Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties.

With respect to labour disputes, the parties are required by law to first go to mediation before proceeding to arbitration. However, the courts do encourage the parties to settle.

Cape Verde

There is no legal requirement to submit to any alternative dispute resolution before or during court or arbitral proceedings, unless the parties enter into an express agreement.

Egypt

There is no requirement under Egyptian law for the parties to consider ADR or mediation, although the parties may agree to submit to this by way of contract.

Gambia

The ADR Act 2005 provides for court facilitated ADR. The Court may refer any matter or part of any matter to ADR. Parties may also agree to have their matter referred to ADR at any time before judgment is given.

Ghana

A dispute resolution clause in an agreement might require the parties to engage in  pre-arbitration ADR. Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties.

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. 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.

Guinea-Bissau

There is no legal requirement to submit to any alternative dispute resolution before or during proceedings, unless the parties enter into an express agreement.

Kenya

Negotiation and mediation are deployed as alternatives to formal dispute resolution but the practice is not as widespread as arbitration. The Kenyan Chartered Institute of Arbitrators Kenya has a list of accredited mediators who are suitable for specific disputes.

Malawi

There is no statutory requirement for parties to arbitration to submit to alternative dispute resolution. Parties will only be required to go through mediation before proceeding to arbitration if an agreement entered into between them requires them to do so.

With respect to litigation, most cases commenced in the High Court of Malawi or any subordinate court must, where the defendant indicates an intention to defend, first go to mediation. The Assistant Registrar of the High Court maintains a list of mediators and a list of experts.  The mandatory mediation is conducted by a person chosen by the agreement of the parties from the list of mediators maintained by the Assistant Registrar or, if the parties consent, a person who is not named on the list. If the matter is not settled during mediation, the action will proceed in the court in which it was commenced.

Mauritius

The Supreme Court has recently adopted the Supreme Court Mediation Rules. The rules apply to civil suits and actions pending before the Supreme Court or as the Chief Justice may deem appropriate to refer to mediation. Additionally, a party to a civil action may also apply to the Chief Justice for the matter to be referred to mediation.

Lesotho

Parties to litigation are required to consider mediation and, in most cases, a reference to mediation is obligatory. It is unclear whether such reference in any way expedites the litigation or brings about earlier settlement as statistics are not currently available.

Namibia

Parties to litigation or arbitration are not required to consider or submit to any alternative dispute resolution before or during proceedings. However, under the Labour Act 2007, parties to a labour dispute are required to attend compulsory conciliation before they proceed to arbitration.

Nigeria

In matters pending before Nigerian High Courts particularly the Lagos High Court at the Pre-trial Conferencing stage, parties are required to consider alternative means of settling the issues between them, and where they are desirous of doing so, the court may refer them to an appropriate ADR centre.  This is not a mandatory requirement, but where the parties show a reasonable desire to settle the matter out-of-court, the courts have been known to stay proceeding to enable parties to settle out of court.

Rwanda

Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties.

With respect to commercial litigation, the judge may grant the parties time to attempt mediation before coming back to court. In labour cases, there is a requirement to mediate before an inspector of labour in the district. It is only where the mediation fails that the parties are allowed to introduce their case to the Tribunal.

Sierre Leone

The judicial process has always encouraged alternative dispute resolution, even during litigation. At any stage of a legal action, parties can enter into consent judgments to settle proceedings.

In addition to the above, with the establishment of the Fast Track Commercial Court, a more formal judicial alternative dispute resolution mechanism was introduced into the judicial system of the court. Sub-rule 2 of Rule 5 states as follows: “The pre-trial judge shall within fifteen days from the date the claim is assigned to him or her, invite the parties to settle the issues for trial or effect settlement of the claim”.This stage has now been firmly regarded as the Alternation Dispute Resolution stage (ADR) and it can result in the settlement of a matter without recourse to full trial.

South Africa

ADR, in particular mediation, is set to take a central role in the litigation landscape in South Africa.  New court rules make mediation a compulsory step for all civil and commercial litigation, and a pilot project will be introduced in 2012 in all high courts and in nine regional civil courts.  The Department of Justice has given a clear indication that the government intends to use mediation to reduce the backlogs in courts.

In addition, the King III Report on corporate governance places a fiduciary duty on management to consider the use of ADR, in particular mediation, before deciding to litigate.

South Sudan

Since South Sudan seceded from the Sudan, much has been anticipated in relation to alternative dispute resolution but no formal legislation has been passed. 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 apology).

Sudan

Parties to litigation or arbitration are not required by law to consider or submit to any alternative dispute resolution before or during proceedings. However, where there is an arbitration, the parties may elect to attempt conciliation first with the same arbitrators and if no agreement is achieved then the arbitration is continued. In litigation the judge may ask the parties to sit down together and try to reach settlement. If they fail to reach settlement they will proceed with the litigation.

Uganda

Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties.

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 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 has been found attractive by other divisions of the High Court and it is gradually being adopted.

Zambia

There is no requirement for parties to an 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.

Zimbabwe

The courts may recommend alternative dispute resolution to the parties but they cannot be compelled to follow that channel 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.