01 Mar 2019
Mary Mutupa (ACIArb)
In Zambia, ADR practice can be traced back to the 90s. Over the years, the practice of ADR has continued to grow both in numbers of ADR practitioners and practice. In Zambia, there are three ADR mechanisms that are mostly practised and have a legal framework governing them; these are Conciliation, Mediation and Arbitration. In this article, I will base my focus on general practice, legislative regime, developments and proposal for law reforms.
A glimpse into legislative regime governing the practice of ADR
Currently, there are only three ADR mechanisms namely Conciliation, Arbitration and Mediation that are backed by a legislative framework. Before the new Arbitration Act of 2000, Zambia had an ancient Arbitration Act which was in place from way back before independence in 1964.
A number of legislative reforms have since been introduced to strengthen ADR law. Some of these reforms both old and new include:
Key Highlights of the new provisions
The above law reforms illustrate the recognition of ADR in Zambia in particular Conciliation, Arbitration and Mediation. Further, the recent law reforms clearly indicate a progressive shift in the practice.
Introduction of Mediation in the Subordinate Court
According to Statutory Instrument No. 73 of 2018 Court Annexed Mediation has been introduced in the Subordinate Court. This will significantly see an increase in the practice as the extension of Mediation to the Subordinate Courts and a certain aspect of cases signifies the important role ADR plays in enhancing access to justice delivery in the Country.
Both Statutory Instruments No. 73 and 72 of 2018 have recognized party autonomy which is an important principle in ADR. The law now requires that parties be given a chance to choose their Mediator from a list of accredited mediators. This changes the old practice in which the Mediation Office appointed the Mediator for parties. This has been amended as provided for in 2018 Statutory Instrument 72 of the High Court Rule (4) and Statutory Institution 73 of the Subordinate Court rule 17 (2) respectively.
Pre-trial protocols in the Court system
According to Order 31 Rule 4 (1) of the High Court Rules it is mandatory that at scheduling conference and before setting an action down for trial, a Judge shall refer any action amenable to mediation to Court Annexed Mediation, except for a case involving a constitutional issue, the liberty of an individual, an injunction or where the trial Judge considers the case to be unsuitable for referral. Further, Order 43 Rule 17(1) of the Subordinate Court Rules provides that a Court may at any time before the hearing of a civil matter, but after the defendant has filed a defence, refer the matter for mediation.
It should be noted that, the recently issued Statutory Instruments 72 and 73 of 2018 for the High Court and Subordinate Court respectively have harmonized the time limit for conducting a mediation process, the time limit is set for forty-five (45) days and clarity has been provided that the time limit covers the period between when the Mediator collects the records.
Attendance to Mediation process
Note that the new rules provide for sanctions to be imposed on a Party that fails to attend the Mediation process. According to Order 31Rule 8(3) of the High Court Rules the Court shall, where a party that has received notice of mediation in accordance with rule 7 fails to attend without reasonable cause, make an order as to costs from the date of referral of the proceedings to mediation in favour of the party in attendance, despite the defaulting party being successful in the action.
Mediation has been extended to a certain aspect of Family Law. According to new rules, Interlocutory Matters such as adoption applications, child and spouse maintenance and property settlements can now be mediated. This development is very progressive as it will enhance access to justice in real time for parties as compared to litigation process which is a lengthy process. Further, this move will in the long term help decongest the Court system at the Subordinate level which faces the problem of backlog of cases due to limited human resource and infrastructure among other challenges faced by Judiciary.
Recommendations for further legislative reforms
While there has been significant key developments in Court Annexed Mediation practice, there is a gap in ensuring for full practice of mediation in general. The lack of specific legislation on general mediation is a challenge. There is need to enact a specific Mediation Act which will govern the general mediation practice as opposed to the current practice which requires parties to first commerce an action in Court and then cases get referred to Court Annexed Mediation as this is the only way that the outcome of the mediation process which is the Settlement Consent Order can be registered in Court. Any mediation outcome as a result of the process initiated outside the Court system is not recognized hence enforcement of any outcome is a challenge in case a party defaults.
Zambia has no legal framework to govern Construction Industry Adjudication hence limiting the practice of this important aspect of ADR. The importance of Adjudication practice which is backed by the law cannot be overemphasized especially in a developing country like Zambia with massive construction projects going on. The enactment of adjudication law will enhance the resolving of construction disputes faster and will lead to many disputes being resolved before getting to either arbitration or Court.
Mary Mutupa (ACIArb) is a Lawyer, Mediator and Arbitrator, Development practitioner, Gender and Human Rights activist. Holds a LLB, LLM in Human Rights, and has 15yrs work experience and a member of CIArb Zambia Branch. Currently working for the Law Association of Zambia-National Legal Aid Clinic for Women as the Deputy Executive Director.