ZAMBIA Law and Practice Contributed by: Mweshi Banda-Mutuna, Musenge Leah Nkonde and Lumbanya Judah Mulenga, Mweshi Banda & Associates Legal Practitioners
4.2 Requirements to Engage in ADR There are no general statutory obligations compel- ling parties to commercial disputes to engage in ADR before commencing litigation or arbitration. Require- ments arise from the following sources. Contractual Obligations The most common basis for an ADR requirement is a multi-tiered or escalation dispute resolution clause in a commercial contract, which requires the parties to attempt negotiation, mediation or conciliation before proceeding to arbitration or litigation. Court-Ordered Mediation Under Order 31, Rule 4 (1) of the High Court Rules (as amended by SI No 72 of 2018), a judge must, at the scheduling conference and before trial, refer any mat- ter suitable for mediation to court-annexed mediation, except where it involves constitutional issues, per- sonal liberty or injunctions, or is otherwise unsuitable. Similarly, under the Subordinate Court Rules (Order 43, Rule 17 (1)), a court may refer a matter to media- tion at any stage after the defence is filed but before hearing. Attendance at court-annexed mediation is compulsory once the referral order is made, since the referral is an order of the court. Professional Obligations of Legal Practitioners The Legal Practitioners (Professional Conduct) Rules impose an ethical duty on practitioners to encourage the amicable resolution of disputes. In particular, prac- titioners are required to advise clients on the desirabil- ity of settlement, including through ADR mechanisms, where appropriate. While this does not amount to a binding legal requirement on parties, it reinforces the broader policy favouring the use of ADR in dispute resolution. Consequences of Non-Compliance A party who fails to attend court-annexed mediation without reasonable cause may be condemned to pay costs regardless of the ultimate outcome of the litiga- tion. Where a party fails to comply with a contractual ADR precondition before commencing proceedings, the court may stay those proceedings pending com- pliance.
As for interim measures, arbitrators are empowered to make any interim measure of protection deemed nec- essary in respect of the subject matter of the dispute, unless the parties have agreed otherwise.
4. Other ADR Methods 4.1 ADR Procedures
Zambia’s constitutional framework expressly pro- motes ADR under Article 118 (2)(d) of the Constitution of Zambia (Amendment) Act No 2 of 2016. The prin- cipal formal ADR mechanisms available for resolving commercial disputes outside litigation and arbitration include the following. Court-Annexed Mediation This is the most established form of ADR in Zambia. It was introduced by the High Court (Amendment) Rules, SI No 71 of 1997; it expanded mandatory mediation to all High Court divisions, allowed parties to choose mediators from an accredited panel, and extended the mediation period to 45 days. In the same year, court-annexed mediation was also extended to the Subordinate Court through SI No 73 of 2018. Private/Commercial Mediation This form of ADR is available outside the court frame- work through the Chartered Institute of Arbitrators – Zambia Branch, which has trained the majority of commercial mediators in Zambia. Negotiation Negotiation remains widely used, although it is not regulated by a specific statutory framework. Commer- cial contracts in Zambia frequently include negotiation as the first step of a multi-tiered dispute resolution clause. Conciliation This is another ADR mechanism available in Zambia, and is governed in the labour and employment con- text by Part IX of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, which pro- vides for conciliation of collective disputes.
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