UNIT 1: INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION (ADR)

- Overview and Definition

- Elements essential for successful ADR - Characteristics of ADR methods
1.1Informality
1.2Application of Equity
1.3Direct Participation and Communication between parties
- Benefits of using ADR
1.4 Voluntary nature of processes:
1.5 Expedited procedures
1.6 Active participation of the parties

1.7 Confidential nature of Processes

1.8 Greater Flexibility in the Terms of Settlement
1.9 Savings in Time
1.10 Cost Savings

UNIT 2: MEDIATION

- Introduction
- Characteristics of Mediation
- Mediation Process in Zambia
2.1The High Court Act
2.2 Industrial Relations Court -
Procedure during Mediation
- Powers of the mediator
- Mediation in Zambia
UNIT 3: NEGOTIATION

- Introduction to Negotiation
- Negotiation Stages
- Negotiation Styles
- Negotiation Strategies
 3.1 Principled Negotiation
- Advantages of principled negotiation
- Positional Negotiators
- Dangers of “positional” negotiations
- Guiding elements in negotiation

UNIT 4: ARBITRATION

- Introduction and definition - What is arbitration?

- To what matters does the act apply?
- What are arbitration clauses? What is the effect on an agreement?

- Reliefs that can be sought

- Who is an arbitrator and how is (are) that person appointed?
- Challenging the competence of an arbitrator
- The doctrine of “kompetenz-kompetenz”
- Conduct of arbitral proceedings - Arbitrator’s professionalism and protection
- What are the powers of the arbitral tribunal?
- The effect of an award
- Zamtel v Celtel SCZ Judgment No.34 of 2008

UNIT 5: Recognition and Enforcement of an Award

- New York Convention on the Enforcement of Arbitral Awards

- Choice of law
- Law binding arbitration: Arbitration Act 2000
- Forum: choice of law
- Enforcement of arbitral award: NY Convention

Unite 6: Public Protector (Ombudsman)

- Introduction
- The Ombudsman as a tool for ADR - The Public
Protector Act, 2016
UNIT 1 Alternative Dispute Resolution (ADR)

The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety
of dispute resolution mechanisms that are short of, or alternative to, full-scale court
processes. It is an effort to arrive at mutually acceptable decisions and an alternative to
adversarial processes such as litigation or administrative processes that result in "win/lose"
outcomes.

The term ADR can refer to everything from facilitated settlement negotiations in which
disputants are encouraged to negotiate directly with each other prior to some other legal
process, to arbitration systems or mini-trials that look and feel very much like a courtroom
process. Processes designed to manage community tension or facilitate community
development issues can also be included within the rubric of
ADR. ADR systems may be generally categorized as negotiation, conciliation/mediation, or
arbitration systems.

Negotiation systems create a structure to encourage and facilitate direct negotiation

between parties to a dispute, without the intervention of a third party. Mediation and
conciliation systems are very similar in that they interject a third party between parties to
the dispute, either to mediate a specific dispute or to reconcile their relationship. Mediators
and conciliators may simply facilitate communication, or may help direct and structure a
settlement, but they do not have the authority to decide or rule on a settlement. Arbitration
systems authorize a third party to decide how a dispute should be resolved.

Negotiation, mediation, and conciliation are non-binding and depend on the willingness of
the parties to reach a voluntary agreement. On the other hand, Arbitration may be either
binding or non-binding. Binding arbitration produces a third party decision that parties to
the disputes must follow even if they disagree with the result, much like a judicial decision.
Non-binding arbitration produces a third party decision that the parties may reject.
1.1 Elements essential for successful ADR

There are four elements essential to the successful use of any ADR method. These are:

1) existence of an issue in controversy;

2) voluntary agreement by both parties to participate in the ADR process;

3) voluntary agreement by both parties on the type of ADR method to be used in lieu of
formal litigation;

4) participation in the process by officials of both parties who have authority to resolve
the issue in controversy.

1.2 Characteristics of ADR methods

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration,

and other forms of community justice vary, all share a few common elements of distinction
from the formal judicial structure. These elements permit them to address development
objectives in a manner different from judicial systems.
They include the following:

1) Informality

ADR processes are less formal than judicial processes. In most cases, the rules of procedure
are flexible, without formal pleadings, extensive written documentation, or rules of
evidence. This informality is appealing and important for increasing access to dispute
resolution for parts of the population who may be intimidated by or unable to participate in
more formal systems. It is also important for reducing the delay and cost of dispute
resolution. Most systems operate without formal representation.
2) Application of Equity

ADR processes are instruments for the application of equity rather than the rule of law. Each
case is decided by a neutral third party, or negotiated between parties to the dispute
themselves, based on principles and terms that seem equitable in the particular case, rather
than on uniformly applied legal standards. ADR systems cannot be expected to establish
legal precedent or implement changes in legal and social norms. Thus, ADR systems tend to
achieve efficient settlements at the expense of consistent and uniform justice.

3) Direct Participation and Communication between parties

ADR systems involve more direct participation by parties to the dispute in the process and in
designing settlements, more direct dialogue and opportunity for reconciliation between
them, potentially higher levels of confidentiality since public records are not typically kept,
more flexibility in designing creative settlements, less power to subpoena information, and
less direct power of enforcement.

1.3 Benefits of using ADR

The benefits of ADR include the following:

• Voluntary nature of processes:

All ADR methods are voluntary in nature i.e. No one is coerced into using ADR
procedures. Parties choose to use ADR procedures because they believe that ADR
holds the potential for better settlements than those obtained through litigation;

• Expedited procedures:

All ADR procedures are less formal. This prevents unnecessary delays and expedites
the resolution process;

• Active participation of the parties:

Confidential nature of Processes:

Parties can participate in ADR procedures, explore potential settlement options, and
still protect their right to present their best case in court at a later date without fear
that data divulged in the procedure will be used against them;

• Greater Flexibility in the Terms of Settlement:

ADR procedures provide an opportunity for parties to craft settlements that can
better meet their combined interests than would an imposed settlement by a third
party. This is because ADR enables parties to avoid the trap of deciding who is right or
who is wrong, and to focus on the development of workable and acceptable solutions.
ADR procedures also provide greater flexibility in the parameters of the issues under
discussion and the scope of possible settlements. Participants can "expand the pie" by
developing settlements that address the underlying causes of the dispute, rather than
be constrained by a judicial procedure that is limited to making judgments based on
Savings in Time:

With the significant delays in obtaining court dates, ADR procedures offer
expeditious opportunities to resolve disputes without having to spend years in
litigation. In many cases, where time is money and where delayed settlements are
extremely costly, a resolution developed through the use of an ADR procedure may
be the best alternative for a timely resolution.

• Cost Savings:

ADR procedures are generally less expensive than litigation. Expenses can be
lowered by limiting the costs of discovery, speeding up the time between filing and
settlement, and avoiding delay costs. These front-end expenses are often the most
costly components of legal costs. These savings are in turn passed on to the
taxpayer. Relieving the burden on the courts caused by unnecessary or
inappropriate lawsuits can help save valuable public resources.
UNIT 2 MEDIATION

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of

resolving disputes between two or more parties. A third party, the mediator assists the
parties to negotiate their own settlement (facilitative mediation). In some cases, mediators
may express a view on what might be a fair or reasonable settlement, generally where all
the parties agree that the mediator may do so (evaluative mediation).

Although the mediator makes recommendations about the process, the parties themselves
make the important decisions about the problem-solving process and the outcome. A
successful mediation can give the parties the confidence in themselves, each other, and
consensual processes, to negotiate without a third party in the future.

2.1 CHARACTERISTICS OF MEDIATION

The main characteristic features of mediation include the following:

(i) The aim of mediation is to reach at a decision that is ‘mutually beneficial’ to all the
parties to the dispute. It is not a ‘winner takes all situation’;

(ii) Mediation is ‘consensual’ in nature: parties can only go to mediation if they have all
agreed that the dispute be referred to mediation;

(iii) In mediation proceedings, parties themselves make the decision, not the mediator;

(iv) The mediator is appointed by the parties to the dispute and his/her role is not to
make the decision for the parties but to assist parties reach at a decision;

(v) A decision arising out of mediation proceedings is not binding and parties are at
liberty to abandon the proceedings at any stage before the decision is made;

(vi) The venue, time and language for mediation proceedings are all agreed by the
parties themselves;
(vii) Mediation proceedings are confidential in nature and may only be disclosed with the
express permission of all the parties concerned; and

(viii) Mediation proceedings are informal in nature when compared to litigation.

2.2 Mediation Process in Zambia

Mediation in Zambia is court annexed. This entails that for mediation to take place, there
must already have been court process. This is provided for under the High Court and
Industrial Relations Act.

1. The High Court Act

Order 31 rule 4 of High Court Act provides that: “every action may, upon being set down for
trial, be referred by the trial judge for mediation and where the mediation fails the trial
judge shall summon the parties to fix a hearing date.”

Order XXXI.5 mandates the court to keep list of mediators. These are persons who have
been trained as mediators. The court will choose such a person from the list.

Order XXXI.6 directs the mediator to collect record of the matter that has been referred to
mediation by the court. Thereafter, the mediator by virtue of Order XXXI.8, the mediator
must contacts the parties to the dispute and set a time, place and date for the hearing of
the matter. The parties will then appear before the mediator either by themselves or their
representatives- who could also be lawyers (Order XXXI.8). Upon appearing for mediation,
the mediator will read out a statement of understanding to the parties explaining his role. If
parties agree, he will then proceed to ask them to sign (Order XXXI.9). The statement of
understanding is in form 5 and it states that: “I will serve as a neutral party to help you
resolve your dispute. I will not act as an advocate for any party. This mediation is strictly
confidential. No party shall be bound by anything said or done in mediation unless a
settlement is reached. If a settlement is reached, the agreement shall be reduced to writing
and, when signed, shall be binding upon all parties to the agreement. Each party agrees not
to request that, I the mediator testify against the other party, nor ask me or the other party
to testify regarding statements made in the mediation.” He will then open the case by
asking the parties to state what their claims are. The parties will continue to deliberate
while the mediator facilitates.

It is noteworthy that mediation is a confidential process and hence a mediator is not to keep
any record. If the mediator made any notes or documents during the process, such must be
destroyed in the event that the mediation failed (Order XXXI.10). If ultimately parties fail to
agree, the mediator will return the record to the Court upon which the matter shall be put
back to the active cause list after which a date of hearing shall be fixed (Order XXXI.11).

If there is an agreement, the mediator will return the record and it will be registered and will
have the same effect as a judgment (Order XXXI.12). There is paid to a mediator a fee at
every sitting. The mediator is given power to bar a party who has neglected or failed to pay
the mediation fee and can take legal action to claim his fee (Order XXXI.13).

Unlike the common law position that alternative dispute resolutions (ADR) are nonbinding,
mediation is binding if there is an agreement (Order XXXI.14). Hence, there is no appeal
against a mediated settlement.

2. Industrial Relations Court

Mediation under the Industrial Relations Court used to be provided for under S.I no. 26 of
Industrial Relations (Arbitration and Mediation) Rules 2002. It was provided in section 12 (1)
that, the Court or Judge may refer any action to mediation at any stage of proceedings
except where: (a) the case involves an injunction; or (b) the Court or Judge considers a case
unsuitable for reference to mediation.

Section 13 (1) provided, a mediation officer shall keep a list of mediators who have been
trained and certified to act in this capacity. Section 14 (1) stated that, where a mediator who
was appointed in respect of a matter, the mediation officer would handover the record of
the suit, action or legal proceedings. However, the Industrial Relations Court under the
amended 2016 Constitution has now been annexed as a Division of the High court under
Article 133 (2) of the Constitution Act No. 2 of 2016.
2.1 Procedure during Mediation

The mediator soon after collecting record contact parties to the action state time, date and
place of the mediation (s.15). A party to mediation shall appear in person and where
represented, with their legal practitioner (s. 16). At the commencement of mediation, the
mediator shall read out to the parties, and their advocates the statement of understanding
which the mediator shall request the parties to sign (s. 17). The mediator shall not keep a
record of the mediation (s. 18). Where the mediator prepares any document during
proceedings and the mediation fails, the mediator shall destroy such document in the
presence of both parties at the end of the mediation (s. 18 (2)). Any statement made during
mediation is confidential and privileged and may not be used as evidence in any matter (s.
19). A mediator may not communicate with any trial Judge in relation to any matter which is
subject of mediation (s. 20).

Where mediation fails, the mediator shall within ten days after the close of mediation
proceedings return the record (s. 21). Where the Court or Judge receives a report, the Court
or a Judge shall, within fourteen days of such receipt, summon the parties for purposes of
fixing the date of hearing for the pending action or application (s. 21 (3)). However, where
mediation ends in a settlement, it shall be registered and sealed by the Court (s. 22 (2)). A
mediation settlement sealed and registered by the Court shall have the force and effect of a
judgment, order or any decision of the Court or Judge and shall be enforced in the like
manner (s. 22 (3)). There shall be no appeal against a mediated settlement (s. 27).

2.2 Powers of the mediator

A mediator may postpone or adjourn a mediation hearing at any stage if considerations of

justice so demand or if that postponement or adjournment is likely to facilitate a possible
settlement (s. 26). Such postponement or adjournment of a matter under this rule shall be
granted by a mediator only within the ninety days period- s. 26 (2). Where on the request of
the mediator after expiry of the ninety day period the Court or a judge is of opinion that the
chances of settlement are still feasible, the Court or a Judge may grant a further period as
may be thought reasonable by the mediator- s. 26 (3). To decipher section 26, one might be
inclined to conclude that mediation is not supposed to take more than 90 days.
The mediator has power to collect a mediation fee paid to the mediator in equal
proportions by the parties to the suit a mediation fee at each sitting (s. 28). Where a party
fails to pay a mediation fee: (a) that party shall be barred from taking any further
proceedings in the matter until payment of that fee; or (b) and judgment has been entered
against that party, execution will be levied against that party by the Court to recover the fee
on behalf of the mediator.
2.3 Role of a Mediator
Mediators can contribute to the settlement of disputes by creating favorable conditions for
dealing with them. This can occur through;
2.4 Providing an appropriate physical environment
This is through selection of neutral venues, appropriate seating arrangement, visual aids and
security.
Providing a procedural framework-this is through conduct of the various stages of mediation
process. As chair of the proceedings, they can establish basic ground rules; provide order,
sequence and continuity. The mediators opening statement provides an opportunity to
establish a structural framework, including the mediation guidelines on which the process
will be based.
2.5 Improving the emotional environment-
This is a more subtle function and varies among mediation and mediators. They can improve
the essential environment through restricting pressure, aggression and intimidation in the
conference room by providing a sense of neutrality and by reducing anxiety among parties.
2.6 Assisting The Parties To Communicate:
People in conflict tend not to communicate effectively and poor communication can cause
disputes to escalate. For mediators to encourage efficiently they themselves must be good
communicators and practice good speaking and listening skills, pay attention to non-verbal
messages and other signals emanating from the context of the mediation.
2.7 Facilitating The Parties Negotiations:
Mediators can contribute expertise and experience in all models and styles of negotiation so
that the parties are able to negotiate more constructively, efficiently and productively. This
function is prominent after the problem-defining stages of mediation and involves
mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators
can also act as catalysts for creative problem solving, for example by brainstorming or
referring to settlement options generated in analogues mediation experiences.
2.8 Functions Of The Parties
2.9 Preparation:
Whether parties enter mediation on their own violation or because legislation obligates
them to do so, they prepare for mediation in much the same way they would for
negotiations, save that the mediator may supervise and facilitate their preparation.
Mediators may require providing position statements, valuations reports and risk
assessment analysis. The parties may also be required to consent to an agreement to
mediate before preparatory activities commence.
2.10 Disclosure Of Information:
Agreements to mediate, mediation rules and court based referral orders may have
requirements for the disclosure of information by the parties and mediators may have
express or implied powers to direct them to produce documents, reports and other
material. In court referred mediation, parties usually exchange with each other all material
which would be available through discovery or disclosure rules were the matter to proceed
to hearing. This would include witness statement, valuations and statement accounts. 2.11
Party Participation:
The objectives of mediation and its emphasis on consensual outcomes imply a direct input
from the parties themselves. The mediation system will expect that parties attend and
participate in the mediation meeting; and some mediation rules require a party, if a neutral
person, to attend in [Link],the process assesses party participation in overall
terms, so a party failing to participate in the initial stages may make up for this later in the
process.
UNIT 3 NEGOTIATION

Negotiation is defined as a formal discussion between parties who are trying to resolve their
dispute without involving third party. In a negotiation, the parties must: identify issues;
disclose their needs and interest; identify possible settlement options; and negotiate terms
and conditions. It must be stated that negotiation is a fact of lifeeveryone negotiates
something every day. Thus, any method of negotiation may be judged by three criteria: (a)
should produce wise agreement if agreement is possible; (b) should be efficient; and (c)
should improve or at least not damage the relationship between the parties.

Negotiation takes place on two levels: (a) addresses the substance; and (b) focuses on the
procedure for dealing with the substance.

3.1 Negotiation Stages

There are 8 negotiation stages in negotiation. These are:

1. Prepare: Know what you want. Understand them.

2. Open: Put your case. Hear theirs.

3. Argue: Support your case. Expose theirs.

4. Explore: Seek understanding and possibility.

5. Signal: Indicate your readiness to work together.

6. Package: Assemble potential trades.

7. Close: Reach final agreement.

8. Sustain: Make sure what is agreed happens.

3.2 Negotiation Styles

Negotiators are often viewed as either: (a) “Hard” and (b) “Soft”. By “Hard” what is meant is
that: (1) participants are adversaries; (2) goal is victory; (3) demand concessions as a
condition of the relationship; (4) distrust others search for the single answer: the one you
will accept; (5) try to win a contest of wills; and (6) apply pressure.

By “Soft” what is meant is that: (1) participants are friends; (2) goal is agreement; (3) make
concessions to cultivate the relationship; (4) be soft on the people and the problem; (5)
trust others; (6) change your position easily; (7) make offers; (8) search for the single
answer: the one they will accept; (9) insist on agreement; (10) try to avoid contest of will;
and (11) yield to pressure.

Other than “hard” or “soft” bargainers, there are also other negotiating styles. These are:

Accommodating: Accommodators are sensitive to the emotional states, body language, and
verbal signals of the other parties. They can, however, feel taken advantage of in situations
when the other party places little emphasis on the relationship.

Avoiding: When negotiating, avoiders tend to defer and dodge the confrontational aspects
of negotiating; however, they may be perceived as tactful and diplomatic.

Collaborating: Collaborators are good at using negotiations to understand the concerns and
interests of the other parties. They can, however, create problems by transforming simple
situations into more complex ones.

Competing: Competitive negotiators have strong instincts for all aspects of negotiating and
are often strategic. Because their style can dominate the bargaining process, competitive
negotiators often neglect the importance of relationships.

Compromising: Compromisers can be useful when there is limited time to complete the
deal; however, compromisers often unnecessarily rush the negotiation process and make
concessions too quickly.
3.3 Negotiation Strategies

There are two main negotiation strategies: principled negotiation and positional
negotiation.

1. Principled Negotiation

Principled negotiation is the name given to the interest-based approach to negotiation set
out in the best-known conflict resolution book, Getting to Yes, by Roger Fisher and William
Ury first published in 1981. Fisher and Ury lay down four basic points: (1) Separate the
people from the problem; (2) Focus on interests, not positions; (3) Generate a variety of
possibilities before deciding what to do; and (4) Insist that the result be based on some
objective standard.

A. Separate the people from the problem

Negotiators on both sides of the issue bring emotion, perceptions, and values to the
negotiations.

Misunderstandings or personal perceptions of “facts” of negotiation may lead to

reactions that produce counter-reactions that leads to failure of negotiation.

Perceptions: (a) Conflict lies in each side’s perception of the problem; (b) Ability to
see the situation as the other side sees it is one of the most important skills a
negotiator can possess; (c) Understanding other side’s position does not mean
agreeing with it; (d) One way to deal with differing perceptions is to make them
explicit and discuss them; (e) Look for opportunities to act inconsistently with other
side’s perceptions—may lead to change of perceptions; (f) Allow “face-saving”—
reconciling an agreement with principle and self-image of the negotiators.

Emotions:
 When parties have a dispute, emotions do come into play. As a negotiator, you
must: firstly, recognize and understand emotions—yours and theirs. This entails
that: (1) Identify source of emotions; (2) Make emotions explicit and acknowledge
them as legitimate. Secondly, allow other side to let off steam. This means that: (1)
Listen without responding; and (2) Don’t react to emotional outbursts. Thirdly, use
symbolic gestures: (1) Apology can defuse emotions; and (2) Even when don’t
acknowledge personal responsibility.

Communication:

Communication is very important. However, there may be some problems that

might permeate the negotiation: (1) Negotiators may not be talking to each other; (2)
Other side may not be hearing you; (3) Misunderstanding with regard to the issues.
Therefore, as a negotiator, one must: (1) Listen actively; (2) Acknowledge what other
side is saying; (3) Talk—don’t debate; (4) Speak about yourself-not about them; (5)
Speak with a purpose. B. Focus on interests, not positions.

Interests define the problem. As a negotiator, one must: (a) Identify the relevant parties;
and (b) “Whose decision do I want to affect?”

The negotiator must look for the interests behind the position. This entails that a negotiator
must ask: Why does party hold that position? Ask why not?—why hasn’t other side taken
the action you desire?

It is of importance that a negotiator prioritizes his or her interests- considers the other side’s
priorities as well while keeping in mind that the most powerful interests are basic human
needs. Negotiations are not likely to make progress if one side believes basic human needs
threatened.

Thus a negotiator must be specific and set forth the seriousness of the concerns, without

implying other side’s interests are unimportant. In doing that, a negotiator will be helping
the other side understand how important and legitimate your interests are. C. Invent

Options for Mutual Gain.

This requires creativity and the commitment to brainstorm options that will be acceptable
to both parties. In brainstorming, negotiators need to separate the stage of evaluating
options from the stage of generating options. Both parties need to broaden the number of
possible options and not search for just one option. Both parties also need to think about
options that will satisfy the interests of the other side.

There are however four major obstacles that inhibit invention of options: (a) premature
judgment; (b) searching for the single answer; (c) assumption of a fixed pie; and (d) thinking
that “solving the problem is their problem.”

There are also four basic steps for inventing options: (i) define the problem; (ii) analysis-
diagnose causes of the problem; (iii) approaches- what are possible strategies? and (iv)
action ideas.

The question which then arises is: how can one invent creative options? There are four
suggestions:

(a)Separate the act of inventing options from the act of judging them. This entails that: (1)
Brainstorming: (a) Define purpose; (b) Choose a few participants; (c) Clarify ground
rules—including no criticism rule. (2) Post-brainstorming: (a) Identify most promising
ideas; (b) Invent improvement of promising ideas; (c) Evaluate ideas and decide.

(b)Broaden the options on the table rather than looking for a single answer: (1) Examine
problem from view of different professionals and disciplines; (2) Invent agreements of
different strengths; (3) Change scope of proposed agreement.

(c)Look for mutual gain: (1) Identify shared interests: (a) Shared interests lie latent in every
negotiation; (b) Shared interests are opportunities; (c) Stressing shared interests can
make the negotiation smoother. (2) Dovetail differing interests: (a) Different beliefs?; (b)
 Different valued placed on time?; (c) Different forecasts?; (d) Differences in aversion to
risk?

(d)Make their decision easy: (1) Without some option that appeals to other side there will

be no agreement; and (2) Option must be viewed as legitimate. D. Insist on using

objective criteria.

How do you develop objective criteria? (a) there must be independence of either side’s will:
(1) Fair standards for the substantive question; or (2) Fair procedure for resolving conflicting
interests. (b) apply to both sides.

E. Alternatives

In the advocacy approach, a skilled negotiator usually serves as advocate for one party to
the negotiation and attempts to obtain the most favourable outcomes possible for that
party. In this process the negotiator attempts to determine the minimum outcome(s) the
other party is (or parties are) willing to accept, then adjusts their demands accordingly.

A "successful" negotiation in the advocacy approach is when the negotiator is able to obtain
all or most of the outcomes their party desires, but without driving the other party to
permanently break off negotiations, unless the best alternative to a negotiated agreement
(BATNA) is acceptable- a BATNA is an alternative approach to a negotiation agreement. This
is the approach that can be used in the event that a negotiation stalls. In developing a
BATNA, one must: (i) invent a list of actions possible if no agreement; (ii) improve some of
ideas from list, create practical alternatives; and (iii) select the alternatives that seem best.

Strengthen your BATNA:

(1) How can you make BATNA easier, more probable, or better at satisfying interest;

(2) If you only accept a deal that is better than BATNA, improving BATNA leads tobetter
result, either through better agreement or going to the BATNA.
It is important to consider their BATNA too:

(1) Understanding BATNA helps you understand how to make agreement easier;

(2) Understanding their BATNA allows you to estimate whether agreement is possible.

Advantages of principled negotiation

The advantages of principled negotiation over positional bargaining can be summarised as

follows.

• Principled negotiation provides more satisfying results for the parties, as it deals
with their underlying needs and interests and thereby establishes agreements which
are more likely to be adhered to;

• It is efficient, in that parties look more creatively at a range of options for dealing
with their problem, and reduces the likelihood of stalemate or leaving anything of
value at the negotiation table;

• It provides a basis for a better relationship between the parties by dealing with
emotional and interpersonal dimensions of conflict and taking account of future
relations between the parties;

• It provides legitimate standards (objective criteria) for evaluating and accepting

settlement options, without the parties appearing to be unduly compromising.

2. Positional Negotiators

Positional negotiation is essentially adversarial. The negotiators see the process as "win-
lose," in which any gains by the opponent are losses by the home team.

Positional negotiation can be illustrated on a more personal basis by the bargaining that
accompanies the purchase of a new car. The salesman has a sticker price to begin with. The
customer has a desired purchase price. Each wants to come as close to his own figure as
possible. The salesman's commission is based on the profit margin achieved, directly from
the customer's pocket. The customer wants the lowest possible profit margin, directly from
the salesman's commission. Each gains at the other's expense. It is true zero-sum and
adversarial. These are examples of "hard" positional negotiation. The negotiators are
demanding and unyielding.

Positional negotiation can also be "soft” bargainers- is quite willing to make concessions to
"keep the ball rolling." The two negotiators start at different positions in a bargaining range
and compromise toward the middle. In "soft" bargaining, agreements are reached quickly.
However, "soft" bargainers run a great risk if they happen to encounter a "hard" bargainer.
Furthermore, "hard" and "soft" bargaining is zero-sum in nature. Both aim at splitting the
pie in order to get what they want. In positional negotiation, each side stakes out its
position, and simultaneously (a) attacks the other position and (b) defends its own.

The problem of positional negotiation is that an opponent may become an enemy by a

demeaning personal attack. Fisher and Ury and Colosi consider this a big mistakethey think
the goal of every effective negotiator is to get the opponent onto their turfessentially onto
their side of the bargaining table-so viewpoints will be similar.

Dangers of “positional” negotiations:

(a) Produces unwise agreements:

- Positions are tied to ego.
- Negotiators are locked into positions.
- As more attention is paid to positions, less attention devoted to meeting
theunderlying concerns of the parties.

(b) Arguing over positions is inefficient:

- Incentives to stall settlement.
- Agreement requires concession.

(c) Endangers on-going relationships:

 - It is a contest of will.
- Anger or resentment may result from concessions required to reachagreement.

(d) Multi-party negotiation complicates positional bargaining: - The varying

positions make “common” position difficult - Changing the position is
difficult.

3.4 Guiding elements in negotiation

There are seven elements that seem to guide negotiations. These are: (1) Interests (focus on
interests); (2) Options (know your options); (3) Alternatives (have alternatives); (4)
Legitimacy; (5) Communication; (6) Relationship; and (7) Commitment.

UNIT 4 ARBITRATION IN ZAMBIA

Introduction

This aim of this section is to enunciate and highlight the salient provisions of the law that
governs arbitration in Zambia. The section also covers various issues, that is to say, what
arbitration is; who an arbitrator is; who has power to choose an arbitrator; the procedure
during arbitration; the powers of an arbitrator; and the effect of an award.

The material is not to be cited as an authority but is rather only a guide to the student.
Therefore, it is incumbent on the student to be more resourceful and go beyond these
guidelines. It is noteworthy that the principal legislation applicable to arbitration in Zambia
is the Arbitration Act No. 19 of 2000 (Arbitration Act). The First Schedule of the Arbitration
Act contains the UNCITRAL Model Law. In interpreting the Arbitration Act, an arbitral
tribunal or a court can refer to the documents contained in the Model Law (section 2(3),
Arbitration Act). In addition: Where the place of an arbitration is in Zambia, the First
Schedule of the Act applies to the arbitration, subject to the other provisions of the Act
(section 8(1), Arbitration Act); and where the place of arbitration is not in Zambia, only
Articles 8, 9, 35 and 36 of the UNCITRAL Model Law apply (section 8(2), Arbitration Act). The
Small Claims Court Act also makes provision for arbitration. Section 5 provides the
jurisdiction of a small claims court shall be limited to liquidated claims of not more than four
thousand fee units and shall be exercised by way of arbitration.

4.1 What is arbitration?

There are many interpretations of what the term “arbitration” means. The HG dictionary
defines Arbitration as “a legal technique for the resolution of disputes outside the courts,
wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters"
or "arbitral tribunal"), by whose decision (the "award") they agree to be bound.”1 The
[Link] defines it as “a mini-trial, which may be for a lawsuit ready to go to trial, held in
an attempt to avoid a court trial and conducted by a person or a panel of people who are
not judges. The arbitration may be agreed to by the parties, may be required by a provision
in a contract for settling disputes, or may be provided for under statute.”

However Section 2 of Act defines an arbitration as referring “to any arbitration whether or
not administered by a permanent arbitral institution and means the conduct of proceedings
for the determination of a dispute by an arbitral tribunal in terms of this Act.” Section 2 has
been modified under the UNCITRAL Rules article 7 which provides that, an arbitration, “is an
agreement by the parties to submit to arbitration all or certain disputes which have arisen
or which may arise between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.”

The key elements are: (i) resolution of a dispute; (ii) by an independent panel (tribunal)2; (iii)
chosen by the parties; (iv) to render a decision; and (v) which the parties would be bound
by. Put simply, arbitration is a non-court procedure for resolving disputes by using one or
more neutral third parties (called the arbitrator or arbitration panel) who render a decision
binding on the parties.

4.2 To what matters does the act apply?

1
[Link] (accessed 12.01.2011)
2
This should not be confused with an arbitral tribunal
By virtue of section 3, of the Act, arbitration applies to: (a) every arbitration agreement; and
(b) every arbitral award (a decision given by an arbitral panel after hearing the dispute).
Further, section 5 instructs that the Act shall apply to every arbitration under any other
written law. However, there are exceptions to the foregoing: firstly under section 4, the Act
does not apply to the Republic and the government of a foreign country, or (b) the Republic
and any undertaking which is wholly owned by, or is under the sole control of, the
government of a foreign country unless otherwise agreed between the Republic and that
undertaking.

Secondly, in section 6, the arbitration does not apply to: (a) an agreement that is contrary to
public policy; (b) a dispute which, in terms of any law, may not be determined by
arbitration; (c) a criminal matter or proceeding except insofar as permitted by written law or
unless the court grants leave for the matter or proceeding to be determined by arbitration;
(d) a matrimonial cause; (e) a matter incidental to a matrimonial cause, unless the court
grants leave for the matter to be determined by arbitration; (f) the determination of
paternity, maternity or parentage of a person; or (g) a matter affecting the interests of a
minor or an individual under a legal incapacity, unless the minor or individual is represented
by a competent person.

4.3 What are arbitration clauses? What is the effect on an agreement?

An arbitration clause is a provision in a contract which requires a party to refer a dispute to

arbitration. Most commercial contracts contain such clauses. Though the Act does not
define what an arbitration clause is, however section 9 (1) of the Act provides that an
arbitration agreement may be in the form of an arbitration clause in a contract or in the
form of a separate agreement.

From the aforementioned, the question which then arises is the effect of such a clause in
the contract. Section 10 states that: A court before which legal proceedings are brought in a
matter which is the subject of an arbitration agreement shall, if a party so requests at any
stage of the proceedings and notwithstanding any written law, stay those proceedings and
refer the parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed. 10 (2) Where proceedings referred to in
subsection (1) have been brought, arbitral proceedings may nevertheless be commenced or
continued, and an award may be made, while the issue is pending before the court. This
entails that, where a contract has an arbitration clause, the Court is obliged to refer such
matter to arbitration.
The Republic of Botswana, Ministry of Works Transport and Communication, Rincheau
Design Consultants (sued as a firm previously T/A KZ Architects v Mitre Limited (1995) S.J.

The first appellant and the respondent entered into a building contract for the construction
of buildings. Such construction work was to be supervised by the second appellant. Clause
35 of the Contract provided for reference of any dispute or disputes between the parties to
arbitration. In the course of construction work a dispute arose between the parties which
made it necessary to refer the dispute to arbitration. Prior to the appointment of the
arbitrator, the respondent had obtained an interim injunction against the appellants. The
matter then went to arbitration and an award made on 31st March 1995. Subsequent to
the arbitrator’s award the respondent filed an application to set aside the award and upon
amending the originating notice of motion obtained an extension of time within which to
apply to set aside the award.

It was held that the court ought not to have entertained the respondent's application let
alone order continuation the exparte order.

4.4 Reliefs that can be sought

Section 11 allows a party whose matter is before an arbitral tribunal to seek an interim relief
such as, an order for the preservation, interim custody, sale or inspection of any goods
which are the subject matter of the dispute; (b) an order securing the amount in dispute or
the costs and expenses of the arbitral proceedings; (c) an interim injunction or other interim
order. However, the Court cannot grant an order or injunction unless: (a) the arbitral
tribunal has not yet been appointed and the matter is urgent; (b) the arbitral tribunal is not
competent to grant the order or injunction; or (c) the urgency of the matter makes it
impracticable to seek such order or injunction from the arbitral tribunal.

4.5 Who is an arbitrator and how is (are) that person appointed?

An arbitrator is a private neutral person chosen to arbitrate (hear or resolve) a dispute as
opposed to going a court of law. In accordance with section 12 provides no person shall be
precluded by reason of that person's nationality, gender, colour or creed from acting as an
arbitrator. To this end, the parties are free to agree on a procedure of appointing the
arbitrator or arbitrators. The most common being: each party chooses an arbitrator and
then the two arbitrators choose the third one.3However, in the event that: (a) a party fails
to act as required under such procedure; or (b) the parties, or two arbitrators, are unable to
reach an agreement expected of them under such procedure; or (c) a third party, including
an arbitral institution, fails to perform any functions entrusted to it under such procedure,
any party may request the court to take the necessary measures, unless the agreement on
the appointment procedure provides other means for securing the appointment.

4.6 Challenging the competence of an arbitrator

An arbitrator’s appointment may be challenged by either party to a dispute. Article 12 of

UNCITRAL rules spell out the grounds as where “any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence or if he does not possess
qualifications agreed to by the parties.” If such is the case, an arbitrator shall, from the time
of his appointment and throughout the arbitral proceedings and without delay disclose any
such circumstances to the parties unless they have already been informed of them by him.

By virtue of article 13, parties are free to agree on a procedure for challenging an arbitrator.
If parties fail to do so, a party who intends to challenge an arbitrator has fifteen days in
within which to send a written statement of the reasons for the challenge to the arbitral
tribunal. Unless the challenged arbitrator withdraws from his office or the other party
agrees to the challenge, the arbitral tribunal shall decide on the challenge. If a challenge is
not successful, the challenging party may request, within thirty days that the court decide
on the challenge, which decision shall be subject to no appeal. But while such a request is
pending, the arbitral tribunal may continue with the arbitral proceedings and make an
award.

3
Section 12 (3), see also article 11 of First Schedule
4.6.1 The doctrine of “kompetenz-kompetenz”

Kompetenz-kompetenz means an arbitral tribunal is allowed to make a decision on whether

it has jurisdiction over an issue that needs to be settled and whether an arbitration
agreement is valid. In line with the principle of kompetenz-kompetenz, validity or expiry of
an agreement that includes an arbitration clause does not necessarily mean that an
arbitration agreement is invalid or has expired. The doctrine of competence-competence,
which holds that an arbitral tribunal may determine questions as to its own jurisdiction, is
an important aspect of arbitration law. It is observed that if arbitrators could not determine
questions as to their own jurisdiction, a recalcitrant respondent could easily frustrate the
parties' agreement to have their dispute decided by arbitration or at least create
considerable delay by merely contesting the existence or validity of the arbitration
agreement in court. Further observation also shows that such a situation would seriously
undermine arbitration as an effective means of private dispute resolution and deprive it of
its attraction.

This doctrine is largely based on Article 16 of the UNCITRAL rules. Article 16 which provide
that the arbitral tribunal may rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement. For that purpose, an
arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract.

4.7 Conduct of arbitral proceedings

Parties to arbitral proceedings are to be treated equally and given an opportunity to present
their case (art. 18). During the proceedings, parties have the liberty to define the rules of
procedure, place of arbitrations and when proceedings shall commence. In default of such,
an arbitral tribunal may be called upon to act.4

4
See: article 19, 20, 21, 22 of the Arbitration Act No. 19 of 2000 (First Schedule)
4.8 Arbitrator’s professionalism and protection

An arbitrator is expected to be professional in his execution of duties and hence cannot act
in a situation where it would lead to a conflict of interest. Section 22 of the Act provides that
a person who has acted as arbitrator in arbitral proceedings shall not act as counsel for, or
representative of, any of the parties in legal proceedings which were the subject of the
arbitral proceedings. Further that, a party to legal proceedings shall not be allowed to
present a person who has acted as arbitrator as a witness in legal proceedings which were
the subject of the arbitral proceedings.

An arbitrator is immunity with regard to any to any function performed in connection with
arbitral proceedings is not liable for anything done or omitted in good faith in the discharge
or purported discharge of that function.5

4.9 What are the powers of the arbitral tribunal?

Section 14 of the Act, spells out the powers of the arbitral tribunal which, inter alia, are:

(a)The tribunal can at the request of a party, order any party to take such interim
measure of protection

(b)Can choose a third arbitrator

(c)to grant an interim injunction or other interim order

(d)to order the parties to make a deposit in respect of the fees, costs and expenses of
the arbitration

(e)to make any order it considers appropriate to compel the attendance of a witness
before it to give evidence or produce documents

5
Section 28
 (f) to order any witness to submit to examination on oath or affirmation before the
arbitral tribunal, or before an officer of the tribunal or any other person in order to
produce information or evidence for use by the arbitral tribunal

(g)to order the discovery of documents and interrogatories

(h)to issue a commission or request for the taking of evidence out of jurisdiction

(i) detain, preserve, or inspect any property or thing in the custody, possession or
control of a party which is in issue in the arbitral proceedings and to authorise for
any of the those purposes any person to enter upon any land or any building in the
possession of a party, or to authorise any sample to be taken or any observation to
be made or experiment to be carried out which may be necessary or expedient for
the purpose of obtaining full information or evidence.

(j) The arbitral tribunal may request from the court executory assistance in the exercise
of any power conferred upon it

(k)Terminate shall the proceedings if claimant fails to communicate his/her statement of

claim (sec. 15(1))

(l) Rule on its own jurisdiction (article 16 of the UNCITRAL rules)

(m) Render an award (sec. 16)

5.0 The effect of an award

Upon hearing the dispute, the arbitral tribunal renders an award in line with section 16. The
award is final (art. 32) and will not be set aside unless the requirements of section 17 and
article 32 are met. These requirements are that: (i) a party to the arbitration agreement
was under some incapacity; or the said agreement is not valid under the law to which the
parties have subjected it; (ii) the party making the application was not given proper notice
of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable
to present his case; (iii) the award deals with a dispute not contemplated by, or not falling
within the terms of, the submission to arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration; (iv) the composition of the arbitral tribunal or
the arbitral procedure was not in accordance with the agreement of the parties or, failing
such agreement, was not in accordance with this Act or the law of the country where the
arbitration took place; or (v) the award has not yet become binding on the parties or has
been set aside or suspended by a court of the country in which, or under the law of which,
that award was made. By virtue of section 17 (3), any application for setting aside may not
be made after three months have elapsed from the date on which the party making that
application had received the award.

NOTE: Read- Zamtel v Celtel SCZ Judgment No.34 of 2008

UNIT 5 Recognition and Enforcement of an Award

When an award has been rendered by an arbitral tribunal, the next question is whether it is
recognised and can thereby be enforced. Section 18 provides that an arbitral award,
irrespective of the country in which it was made, shall be recognised as binding and, upon
application in writing to the competent court. However, by virtue of section 19, the Court
may refuse to recognise or enforce the arbitral award if: a party to the arbitration
agreement was under some incapacity; or the said agreement is not valid under the law to
which the parties have subjected it or under the law of the country where the award was
made; (ii) the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings; (iii) the award deals with a
dispute not contemplated by or not falling within the terms of the submission to arbitration,
or it contains decisions on matters beyond the scope of the submission to arbitration; (iv)
the composition of the arbitral tribunal or the arbitral procedure was not in accordance with
the agreement of the parties or, failing such agreement, was not in accordance with the law
of the country where the arbitration took place; or (v) the award has not yet become
binding on the parties or has been set aside or suspended by a court of the country in
which, or under the law of which, that award was made. The award once granted, is binding
on the parties (section 20).

5.1 New York Convention on the Enforcement of Arbitral Awards

The New York Convention makes provision for the enforcement of awards rendered outside
Zambia. Section 30 (a) of the Act provides that a New York Convention award means “an
award made in pursuance of an arbitration agreement, in the territory of a state (other than
the Republic of Zambia) which is a party to the New York Convention.”

The question then arises: to whom does the New York Convention apply? Article 1 (3) of the
New York Convention provides that, any State may on the basis reciprocity declare that it
will apply the Convention to recognition and enforcement of awards made only in the
territory of another Contracting State. It may also declare that it will apply the Convention
only to differences arising out of legal relationships, whether contractual or not, which are
considered as commercial under the national law of the State making such declaration. This
entails that a state has to be party to this Convention for it to rely on it. In accordance with
article 2 and 3 of the Convention, States are obliged to recognise and enforce arbitral
awards.

5.2 Choice of law

As already discussed, for an arbitration to take place, parties must have expressly stated in
their contract- parties must put in an arbitration clause. One aspect that is usually
contentious is what law will govern such a contract in an event of a breach or dispute arising
assuming that the parties to a contract reside in two different countries. Therefore it is
necessary that a contract contains a choice of law clause. A choice of law clause is a term of
a contract in which the parties specify that any dispute arising under the contract shall be
determined in accordance with the law of a particular jurisdiction. Thus, if all the parties
and the relevant factual elements affecting formation, validity, and performance are
geographically located in the same state, it will be obvious that, if the contract is silent on
the point, the local municipal law (usually called the lex loci contractus, i.e. the law of the
place where the contract was made) will be applied as the law governing substantive issues.

The lex fori, i.e. the law of the local forum court, will be applied to procedural matters (such
as evidentiary rules). But, as people and transactions now more frequently cross border
lines both physically and electronically, it becomes necessary to consider which law will be
applied in the event of a dispute. Should the laws be the same, the question will be
academic. But, if the laws are sufficiently different that the judgment will change depending
on which law the court applies, the issue of choice of law becomes highly significant.

Unite 6: Public Protector (Ombudsman)

6.1 Introdctuion

The Office of the Ombudsman in Zambia has undergone a number of changes, which will be
beneficial to the public in terms of more efficient and effective service delivery. On 5
January 2016, His Excellency Mr Edgar C. Lungu, the President of the Republic of Zambia
signed the Constitution Bill Number 17 of 2015 which amongst other clauses changed the
Office of the Investigator General to the Office of the Public Protector.
As of 5th January, the functions of the Ombudsman of Zambia that were carried out by the
Office of the Investigator General have now been inherited by the Office of the Public
Protector. However, The Commission for Investigations continues to carry out its function as
a secretariat for the Public Protector and complaint handling body under the auspices of
Chapter 39 of the Laws of Zambia.

This constitutional innovation provides the institution of the Public Protector with the
necessary protection required of it to properly carry out the functions of the Ombudsman
with integrity and independence, as a Parliamentary Ombudsman
Office.

Chapter 252 of the amended Constitution provides for the appointment of a Public
Protector by the President, on the recommendation of the Judicial Service Commission,
subject to ratification by the National Assembly. The Public Protector has powers equivalent
to a High Court Judge, among other powers. The office of the Public Protector shall report to
the National Assembly on matters concerning its affairs. Whereas in contrast, the
Investigator General was an Executive Ombudsman answerable to the Republican President,
the Public Protector shall only be answerable to the National Assembly.

However, submission of Annual Reports to the National Assembly by the office of the
Investigator General which was an already established statutory requirement shall continue
to be carried out as before by the Office of the Public Protector.

Under the former Constitution, the Office of the Investigator General merely made
recommendations to the institutions complained against. However, the Public Protector
may among other things:

1. Investigate an action or decision taken or omitted to be taken by a State

Institution in the performance of an administrative function.
2. Bring an action before a Court.

3. Hear an appeal by a person relating to an action or decision taken or omitted to

be taken in respect of that person.
 4. Make a decision on an action to be taken against a public Officer or Constitutional
Office holder, which decision shall be implemented by an appropriate authority.

As the CFI we look forward to the commencement of the operation of the Zambia’s
Parliamentary Ombudsman Office i.e. the Office of the Public Protector. Ms C.C.Z Sokoni
currently continues to carry out the duties of the Public Protector.
Public Protector (Ombudsman) as a Tool of ADR
Recently, Zambia’s newly installed Chief Justice Irene Mambilima reminded the legal
community of the need to use Alternative Dispute Resolution (ADR). According to Slapper &
Kelly (2009: 391) ADR is a means of resolving disputes without resorting to court action.
It is available in civil cases but not criminal cases. ADR includes Arbitration, Mediation,
Conciliation, Ombudsman, and Tribunals. Arbitration is the procedure where parties in
dispute refer the issue to a third party for resolution. Mediation, on the other hand, involves
a mediator who helps both sides come to an agreement. In Conciliation the conciliator takes
a more interventionist role between parties.

The Public Protector Act, 2016

The office of the public protector is established by article 255 of the Constitution Act of
2016.
The Public Portctor Act provide for the functions, powers, operations and financial
management of the Office of Public Protector and it also provides for the initiation and
investigation of complaints and the repeal and replace the Commission for Investigations
Act, 1991.
Under the 1991 Act, the office of the investigator General used to be an office under the
executive but under the new Act has been moved to be under parliament.
.