ZAMBIA Law and Practice Contributed by: Mweshi Banda-Mutuna, Musenge Leah Nkonde and Lumbanya Judah Mulenga, Mweshi Banda & Associates Legal Practitioners
Sector-Specific Requirements Conciliation is a mandatory precondition to referral of collective labour disputes to the Industrial Tribunal under Part IX of the Industrial and Labour Relations Act, Chapter 269. 4.3 Impact of ADR Effect on Litigation and Arbitration Rights Engaging in ADR does not waive or extinguish a par- ty’s right to litigate or arbitrate. ADR processes are consensual and without prejudice to the substantive rights of the parties unless and until a binding settle- ment is concluded. Parties retain the right to proceed to trial if mediation fails, and any matter referred to court-annexed mediation that is not settled within the mediation period is returned to the trial judge for con- tinuation of the proceedings. Legal Effect of a Mediated Settlement A court-annexed mediation settlement has the same force and effect for all purposes as a judgment, order or decision of the court, and shall be enforced in the same manner. Private (non-court-annexed) mediation settlements, by contrast, do not carry the same status as they are enforceable only as contracts in the ordi- nary manner, and must be brought before the court for enforcement as such. 4.4 Timing of ADR Typical Timing in Zambia Mediation in Zambia is predominantly court-annexed and typically arises after proceedings have com- menced. Under Order 31, Rule 4 (1) of the High Court Rules (as amended by SI No 72 of 2018), referral occurs at the scheduling conference, before trial. In the Subordinate Court, referral may be made at any stage after the defence is filed but before hearing, under Order 43, Rule 17 (1) (SI No 73 of 2018). Once referred, mediation is to be concluded within 45 days from the date the mediator collects the court record. If it is not concluded within the 45 days, the matter must be returned to the trial judge, who will summon the parties within 14 days and issue further directions. There is no provision in either the Limitation Act or the court-annexed mediation rules that automatically
suspends the running of a limitation period by reason of engagement in ADR proceedings. As such, limita- tion continues to run during ADR. 4.5 Confidentiality All forms of ADR are confidential in nature. 4.6 Costs The costs of ADR are allocated equally between the parties. In court-annexed mediation, the fees are low and set by the judiciary, while in arbitration the fees are determined in accordance with the scale of fees of the arbitral institution that the parties or arbitrator choose to adopt. In arbitration, parties are jointly and severally liable for the arbitrators’ fees and costs of the arbitration. 4.7 Courts and ADR The Zambian courts are highly responsive to ADR and operate within a constitutional framework that expressly mandates promotion of ADR. Article 118 (2) (d) of the Constitution mandates the judiciary to pro- mote the use of ADR mechanisms, and court-annexed mediation has become an integral part of the judicial system by virtue of this constitutional provision; the judiciary actively promotes ADR by hosting mediation weeks. Legal fees are governed by Part IX of the Legal Prac- titioners Act Chapter 30 of the Laws of Zambia, which provides for the Remuneration Committee of the Law Association of Zambia in consultation with the Chief Justice to prescribe the scale of fees due to practi- tioners in contentious and non-contentious matters. In terms of Section 74 of the Legal Practitioners Act, a practitioner and a client can agree on a gross sum, commission, percentage, salary or other method of payment of legal fees. Such agreements must be in writing and can be sued upon. They can also depart from the scales of fees with the resulting agreement being subject to enforcement or variation by the tax- ing master. 5. Costs, Fees and Funding 5.1 Legal Fees
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