LLB 310 Alternative Dispute Resolutions

NIPA
ALTERNATIVE DISPUTE RESOLUTION

MODULE
BY: MAKESA T KALIFUNGWA, BA, LL.B, MBL

COURSE GUIDE
Course Title: Alternative Dispute Resolution
Credit Units: 28 Units
WHAT YOU WILL LEARN IN THIS COURSE

This course is about Alternative Dispute Resolution (ADR). It examines the concept
of ADR as an alternative to the conventional means of settling disputes in .; litigation.
The course seeks to make you understand the different methods by which disputes
can be resolved, the kinds of disputes that can be resolved through ADR, the
benefits of referring disputes to ADR and limitations to the ADR process.
IMPORTANCE OF CASES
This study guide, like any textbook on any aspect of the law, makes references to
important judicial decisions as well as to some statutory enactments. There is still a
dearth of cases in this aspect of the law because the concept of ADR is still a
relatively new concept that is gradually getting entrenched in our legal framework.
COURSE AIMS
The course aims at providing the students with the basic knowledge of alternative
dispute resolution as a means of resolving commercial disputes, individual and
communal disputes. In this course you will learn among other things, the concept of
ADR as a means of settling disputes, and decongesting the courts by reducing the
number of cases that go to litigation if they can be resolved through alternative
means of settling disputes.
In essence the aims of the course include:
-Definition of Alternative Dispute Resolution
-Different methods of ADR under the following headings:
-Mediation
-Conciliation
-Negotiation
-Arbitration
-Initiating processes at the multi door court house.
COURSE OBJECTIVES
At the completion of this course, you should be able
(i) To understand the concept of alternative dispute resolution(ADR)
(ii) To discuss the reasons why ADR is essential to the administration of justice
(iii) To discuss the types of ADR process
(iv) To appreciate the place of ADR in conflict resolution between individuals,
communities and commercial entities
(v) To identify the limitations confronting the settlement of disputes through the ADR
processes.
(vi) To point out areas that needs to be improved upon in order for the outcome of
the processes to be enforceable.
STUDY UNITS
There are sixteen study units in this course as follows
MODULE 1
Unit 1 What is ADR?
Unit 2 Purpose of ADR
Unit 3 Advantages of ADR
Unit 4 Limitation of ADR
MODULE 2 MEDIATION
UNIT 1 Mediation
UNIT 2 Conciliation
MODULE 3 ARBITRATION
UNIT 1 Nature of Arbitration
UNIT 2 Sources of Arbitration Law
UNIT 3 Contents of arbitration Agreement
UNIT 4 Arbitration Institutions
MODULE 4 NEGOTIATION
Unit 1 Meaning of Negotiation
Unit 2 Negotiation Strategies
Unit 3 Sources of Power in Negotiation
Unit 4 Negotiation Processes
MODULE 5 OPTIONS AND PROCESSES OF ADR
Unit 1 Other forms of ADR
Unit 2 Mechanisms for the practice of ADR
COURSE MARKING SCHEME
The following table lays out how the course marking is done.
Assessments 30% of course marks
Final examination 70% of overall course marks
Total 100%of course marks
MODULE 1 TUTOR MARKED ASSIGNMENT
Define the term ADR
List the advantages of ADR
Discuss the purpose of ADR and limitations to the use of ADR.
Discuss the features of mediation.
Discuss, giving examples of situation when mediation will not be applicable.
Discuss conciliation as a means of settling disputes between parties.
Discuss other limitations to arbitration.
List the features of arbitration and discuss.
What is negotiation?
Discuss the types of negotiation methods you have learnt about
Discuss the tricks used in negotiations
List and discuss the sources of power in negotiation
Discuss the phases of negotiation processes known to you.
MODULE 5
Discuss the objectives of the multi door courthouse.
Discuss the options open to citizens at the multi door courthouse.
MODULE 1 INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION
(ADR)
INTRODUCTION
Unit 1 What is ADR
Unit 2 Purpose of ADR
Unit 3 Advantages of ADR
Unit 4 Limitation of ADR
UNIT 1
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Definition of ADR
3.2 Purpose of ADR
3.3 Advantages of ADR
3.4 Limitation of ADR
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference / Further Readings
1.0 INTRODUCTION
A story:
The story is often told of a matter in the Zambian jurisdiction. The matter first came
up in a court where this young man was a clerk. The matter was still in court
undergoing one form of adjournment or the other, on one substantive or procedural
point of law or the other. The young man went to England to read Law.
The matter was still in court, while the young man returned from England with an
LL.B. After being called to the .n Bar and with some stint in practice, the young man
joined the distinguished bench of the High Court of a State in the Country. The
matter was still in court while the young man, who by then had come of age, took a
seat on the eminent bench of the Court of Appeal. The matter was eventually
pronounced upon by a panel of the Court of Appeal of which the then young clerk
was a member, fifteen years after it was first reported in chamber. The matter waited
patiently in court for well over fifteen years. Fifteen good or is it bad years?
Yet Another:
In a similar situation, another matter took about two decades going through the High
Court and the Court of Appeal before finally getting to the Supreme Court. The more
interesting part of this second situation is the decision of the Supreme Court on the
matter. The learned justices of the Supreme Court after careful consideration in their
wisdom decided that the matter be referred back to the High Court for trial, de novo.
That was, over eighteen years after the matter first came up. Eighteen years! That is
about two decades.
.
Statistics:
In a survey of cases completed by the Supreme Court of Zambia between 1999 and
2005
the Zambian State Ministry of Justice came up with the following interesting
statistics:
Year Land Cases Other Civil Matters Criminal Matters
1999 13.6 Years 13.8 Years 8 Years
2000 18 Years 11.7 Years 7.3 Years
2001 19.4 Years 12.6 Years 9.9 Years
2004 16 years 14.2 Years 9.5 Years
As the Ministry puts it:
Taking together a total of 208 Supreme Court judgments surveyed, we found that it
took an average of:
18 Years (from year of commencement) to finalize land cases
14 Years (from year of commencement) to finalize other civil cases
10 Years (from year of commencement) to finalize criminal cases
The same survey shows that:

It took an average of six years for contested cases to move from filling to judgment
Poser:
What is the value of a judgment that comes after eighteen years of brilliant and
robust advocacy, when some of the parties may have died or when interest may
have changed?
What also is the real and actual value of a judgment if after paying lawyers tons of
money and dissipating so much emotion; time and energy going to court for about
two decades, the judgment finally came several years after?
This poser becomes even more relevant when the subject of the dispute is time
sensitive.
An investment dispute in particular and business dispute in general cannot wait for
eighteen years to be efficiently and meaningfully resolved. The outcome will be a
sheer waste of time, money, energy, emotions and other valuable resources of all
the parties directly or indirectly involved including the supposedly victorious party,
except of course, the lawyer.
Emerging developments have indicated that litigation as a mechanism for dispute
resolution is old, tired, party unfriendly and incapable of coping with challenges of
contemporary dispute resolution.
As has been earlier indicated

Disputes arise in contracts of sales, construction, employment, banking, insurance,
etc. Where what is required is simply the appropriate interpretation of just one or two
clauses of the contract. Such matters cannot wait for eighteen years to be resolved.
What is actually required is a constructive and amicable interpretation of the grey
clauses for the contract to continue. Litigation simply proves inadequate in the
resolution of such disputes.
Generally where relationships are on-going in nature, litigation is to say the least
insufficient in resolving disputes arising thereof. Differences arising from on-going
personal relationships get complicated when litigation is resorted to because of the
obvious win-lose nature of litigation. Court judgments identify clear winners and
outright losers. The winner becomes a triumphant champion, the loser naturally does
everything to undermine the judgment or wait for another day to take his pound of
flesh
Going to court creates hard feelings between the parties involved. Certain Scholars
of put it clearly: You don’t come back from the court to be friends.
Litigation is a win/lose means of dispute resolution. Such mode of resolving disputes
is no longer fashionable especially at a time when the whole world is opening up,
when the world has become a global village, when we consciously want to position
our national economy as a destination point for foreign investments. We cannot
afford not to have a fast and efficient means of dispute resolution. The in-thing is
win/win means of resolving disputes.
It is because of the limitations of litigation, some of which the posers above
highlights,
that focus is now being placed on ADR in most contemporary jurisdictions as means
of resolving disputes. So what is this ADR and what is it all about? The meaning of
ADR, its essence, advantages and limitations are examined in these.
This study material which should be studied along with other works, some of which
are mentioned under Reference / Further Reading, would take you through the
rudiments of ADR, looking at its meaning, advantages and limitations. The work is
also a reference point in the consideration of the working of the different heads of
ADR as well as the laws / infrastructure for the practice of ADR in the Country.
2.0 OBJECTIVES
At the end of this unit, you should be able to:
i) Define ADR
ii) Mention some of the techniques / means of dispute resolution
iii) Indicate the need for ADR
iv) Explain the advantages of ADR techniques
v) Identify situations / disputes which for now ADR techniques are not applicable
3.0 MAIN CONTENT
3.1 What is ADR?
There is basically no standard definition for ADR. However, it can be simply
explained
as the means or methods of resolving legal disputes or conflicts privately through the
intervention of a third party other than via litigation. It offers a more conciliatory
means, quicker and less expensive platform for resolving disputes in contrast to the
procedures of seeking justice and fairness or even redress, in a law court. More
importantly, ADR mechanism promotes and protects the privacy of aggrieved
parties, creates calm and friendly atmosphere for parties to discuss, agree and
disagree before reaching amicable and endorsable agreement. Today, the
application of ADR to resolve conflicts are becoming more and more preferred than
litigation in various fields and works of life. It is employed to settle contractual
disputes in employment and labour laws, marriage and divorce issues and also in
consumer protection and product liability cases. The common ideology of “settlement
out of court” is ADR in few words. In traditional Zambian villages and towns, ADR is
commonly employed to resolve cases among communities, families, people or
groups. The aggrieved individual or parties consult the community head(s) or even
the king where applicable. The community head in turn invites the other party (ies) to
a meeting at a set date and place, when and where the parties meet in order to
resolve issues. This method of conflict resolution has resolved major conflicts and
brokered peace where war, protest, or fracas would have resulted.
ADR mechanism promotes dialogue and preserves relationship where possible.

Moreover, it is worthy of note that, different conflicts may require different ADR
approach. For instance, family conflicts can be resolved via methods which are at
variance to community conflicts, also marriage disagreements or issues of divorce
and child custody are resolved differently from disputes relating to extended family,
likewise in commercial transactions etc. Thus, a good ADR consultant must first
know how to evaluate disputes to determine if ADR will be the best means of
resolution and also be able to select appropriate ADR approach. For instance . State
under the ministry of justice has created a Citizen Mediation Center (CMC) for
people seeking to resolve disputes without recourse to the court of law. The staffs in
the center are saddled with responsibilities bothering on hearing and resolving
peoples’ disputes.
They are trained lawyers in specialized law fields which include family, real
estate/property and commercial. The CMC and other similar offices are resource
center where people call or visit when there is need to seek advice on how to deal
with issues relating to disputes, when parties want informal and impartial point of
view or desire mutually acceptable solutions to resolving a situation out of the court
of law. A very important skill requirement for ADR personnel is ability to listen and
counsel people.
3.2 The Purpose of ADR
aFirst and foremost, there would not be the need for ADR if there are no conflicts or
disputes. Therefore, the primary purpose of ADR is to create avenues and platforms
for amicable resolution of already existing or intending conflicts or disputes in such a
way that it is quick, cost less and at the same time does not infringe on the rights and
privacy of the parties. However, disputes can be defined as a lack of compromise
between parties.
Disputes can also be said to arise when parties fail to reach satisfactory bargain over
an issue. Invariable the parties are unwilling to concede to each other without the
right benefit. When such phenomenon arises, the process of ADR is set up either
through facilitating a resolution, i.e. by bringing the parties to acknowledge and
appreciate their difference and therefore reach a mutually beneficial conclusion, or
by providing the parties with a mutually binding decision, i.e. through the
establishment of rights and commitments.
In addition to the aforementioned, other purposes of ADR include:
- To serve as alternative to litigation
- It is used to create a ‘win-win’ situation between parties by providing resolutions
that the parties agree and are happy with
- Its process involves the use of negotiation skills to achieve and develop
agreement that are beneficial to parties
- It is designed to engage in constructive and unambiguous dialogue to fashion out a
path to resolution
- It is meant to be voluntary, flexible and used to serve the parties interest.
3.3 Advantages of ADR
The advantages of ADR have been variously mentioned in the discourse presented
in previous sections. However as a way of capturing some of the important ones, the
advantages which employing alternative dispute resolution serves include the
following:
1. It saves time: Going through traditional court of law to resolve cases involves
procedures that are time consuming. The processes of obtaining evidence,
presenting the evidence, preparing witnesses and the defense proceedings takes
time. This time involvement has been attributed to delayed justice in some quarters.
Employing ADR saves time. The parties involved in the dispute have the control over
the speed at which a resolution is reached in contrast to cases decided
in a court of law.
2. It saves money: The cost of seeking the services of a legal practitioner, obtaining
evidence and processing such evidence, etc. may be enormous when compared to
the cost of resolving disputes via the alternative dispute resolution methods.
3. Issues resolved through the alternative dispute resolution methods/techniques end

up bringing satisfaction to aggrieved parties. The parties at the end of the day come
to a common ground whereby each is happy with the outcome. This may not be the
case for matters resolved in a law court, where one wins and the other lose.
One of the parties is happy about the final decision of the judges while the other is
left aggrieved. Some time, the aggrieved party looks for opportunity for further
litigation, through appeals in higher court of law. Issues of appeal do not suffice in
alternative dispute resolution has each party reaches a mutually beneficial
agreement that satisfy their aspirations.
4. It improves and sustains cordial relationship among parties: When disputes are
resolved through means provided by alternative dispute resolution, the parties are
left happy and they can continue to develop existing relationship. Most time,
alternative dispute resolution fosters better understanding among parties and
individuals. This is because, during the process of dispute resolution, the cause(s)
of disagreement are presented and an understanding is fashioned out through
bargaining which is based on the interests of the parties.
5. ADR maintains the privacy of the parties as against traditional settlement through
court.
6. ADR provides platform for informal and less confrontational means of dispute
resolution. It avoids placing the label “wicked enemy” on the other party but rather
creates a friendly atmosphere for dispute resolution. The parties own the decision
and therefore would be committed to maintaining it.
3.4 Limitations of ADR
ADR is limited in some instances irrespective of its advantages. Some of its
limitations
include:
1) Inability to decide criminal matters
2) Its adoption may also at times be limited by cost most especially when a party to a
dispute cannot employ the services of a qualified ADR practitioner
3) Time to resolve a dispute may also be a limitation. In order for some disputes to
be resolved for a win/win situation, the resolution may have to be concluded within
stipulated time. However, when parties fail to agree, the resolution procedure drags
on.
4) Due to the voluntary nature of ADR, a party may refuse to accept what is termed
as the best resolution and therefore, refuse to comply with the mandate of the
award.
4.0 CONCLUSION
From the foregoing it can be safely posited that the concept of ADR in the resolution
of disputes have come to stay. The growth of the ADR process has been enhanced
as a reason of the fact that the time, money and energy input to litigation is often not
worth the while on the long run.
5.0 SUMMARY
Considering the advantages of ADR, individuals, corporate bodies, organizations,
governments and even the courts of law have come to realize that the only way to
decongest the courts and to allow for settlement of disputes amicably is through the
various ADR processes.
6.0 TUTOR MARKED ASSIGNMENT

i) Define the term ADR
ii) List the advantages of ADR
iii) Discuss the purpose of ADR and limitations to the use of ADR.
7.0 REFERENCES / FURTHER READING
Orojo, J.O and Ajomo, M.A. 1999. Law and Practice of arbitration and conciliation in
., Mbeyi and Associates, ..
Redfern, A. Hunter, M. Blackaby, N and Partasides, C. 2004. Law and practice of
international commercial arbitration, 4th edn., Sweet and Maxwell, London
MODULE 2 MEDIATION
UNIT 1 Mediation
UNIT 2 Conciliation
1.0 Introduction
2.0 Objectives
2.0 Main Content
3.1 Development of mediation
3.2 Mediation defined
3.3 Features of Mediation
3.4 When Mediation will not be an option
3.5 Advantages of mediation
3.0 Conclusion
5.0 References/ Further Reading
1.0 INTRODUCTION
Mediation as an ADR process is one of the mostly used of the processes in Zambia.
It can be court directed or voluntary decision of the parties to mediate.
2.0 OBJECTIVES
After the student has studied this unit, student must be able to discuss and point out
the importance of mediated disputes, features, advantages and the shortcomings of
the process.
3.0 MAIN CONTENT
3.1 Development of mediation
The growth of mediation as an alternative method of resolving conflicts between
parties
have grown tremendously in recent years on a global level. The European Union is
trying
to make sure that it leaves no stone unturned by making sure all Directive on
Mediation
in Civil and Commercial matters are put into practice and effect compliance by 21
May,
2011.Many countries have embraced the concept of court annexed or court-
regulated
mediation i.e. Bulgaria, china, Germany etc. The realisation by the government of
. both at the state and federal level that the courts alone cannot serve the purpose
of satisfying settlement of commercial disputes amidst conflicting parties have
necessitated efforts to ingrain into the legal system, a framework for alternative
dispute resolution; mediation.
The idea of the multi door court house in . reputed for being the brain child of the
Negotiation and Conflict Management Group (NCMG) in conjunction with the High
Court established the . Multi Door Court House (LMDC) in 2002 through
private-public sector partnership initiative. This model refers to the various
alternatives
available at first instance to the LMDC and to consider appropriate dispute resolution
channel including mediation, arbitration etc.
Many other states in . in addition to . and Federal Capital Territory, Abuja
are in the process of incorporating ADR into their laws.
The LMDC Laws sets out statutory objectives to:
1. Provide alternative dispute resolution as a means to ensure access to justice and
act as an appendage to litigation in settling of disputes.
2. Reduce delays and frustrations that attend litigants in the normal court process.
3. Serve as a platform to promote ADR in . state.
4. Enhance the growth and effectiveness of the justice system through ADR
methods.
3.2 Mediation defined
Mediation is the process in which parties involved in a dispute meet jointly and
separately in confidence with a neutral and independent outside party to explore and
decide how the dispute between them will be resolved. Mediation facilitates
communication between disputing parties to reach an agreement acceptable to both
parties.
Goodman defined Mediation as a voluntary, non-binding and private dispute
resolution process in which a trained neutral person helps the parties try to reach a
negotiated settlement.
..
3.3 Features of mediation
The definition proffered by Goodman gives an insight into what the features of
mediation are
1. Voluntary
2. Non-binding
3. Private
4. Neutral mediator
5. A settlement negotiated by the parties
Voluntary
The consensus between parties to a dispute is important to initiating the mediation
process. Often, mediation is organized by parties on judicial recommendation. Any of
the parties that refuse to mediate stands to bear the consequences, which may be
pecuniary.
This may be in form of a fine especially for any party that is absent at the hearing,
during which the appropriate channel for the process is determined. Mediation is
voluntary and all parties are required to participate. If a party decides to abandon the
process, then the purpose is defeated.
Non-binding
The process of mediation does not bind any of the parties in dispute and does not
impose any obligation on them to settle. Settlement depends on the participation and
agreement of parties involved. The mediator can only persuade the parties in dispute
to resolve their differences amicably through the process. If parties decide not to
settle, then the issues will be resolved through litigation. If settlement is achieved by
the parties, the terms of settlement will form part of an enforceable contract, and an
enforceable judgment of the high court, if it is a court annexed process.
Private
The process of mediation is private and confidential as to limits imposed by the law;
howbeit refusal to mediate can have adverse consequences in cost. Parties can in
mediation disclose information, express views, make suggestion, offer concessions,
without fears that such could restrict them charting a different course should matters
proceed to trial. If the mediation process fails, a party is at liberty to formalize an
offer made during mediation as an offer which would carry the usual cost implication.
Neutral mediator
The ability of the parties to trust and repose confidence in the mediator is paramount
to the success of the whole process of mediation. Such mediator must be is neutral
in all aspects of the process, must not be a person interested in issues in dispute,
not related or connected to any of the parties through whatever means to avoid bias.
The Parties must bestow enough authority on the mediator to perform his duties. The
mediator should not let emotions or sentiments intrude into the process which can
undermine the credibility of the process.
The parties’ settlement
Settlement is attainable only when parties agree to resolve their differences through
the mediation process and they are saddled with the responsibility of fulfilling the
terms of the agreement.
The process seeks to create an atmosphere where parties to dispute are able to
reach an agreement that is fair and maximize the interest of all. The flexibility of the
process create avenue for exchange of ideas and opportunity to parties to properly
address issues at stake before reaching a settlement.
3.3 When mediation will not be an option
With recent developments in the administration of justice through ADR processes the
courts may impose sanctions on parties that reject or refuse to attend the
mediationprocess. Any party that unreasonably fails to mediate may likely be
sanctioned by the court. In line with this, when can a party refuse to mediate?
The party refusing to mediate would have to show that mediation would have no
reasonable prospect of success. In the case of Hasley v. Milton Keynes General
NHS
trust (2004) EWCA Civ 576; (2004) 1 WLR 3002, the England and Wales Court of
Appeal was more sympathetic to parties that refused to mediate. However in
contrast, in the case of Hurst V. Leeming (2002) EWHC 1051 (Ch); (2003) 1 Lloyd’s
Rep 37.
Lightman J in the case suggested that to escape a sanction for refusal, the refusing
party would have to show that mediation would have no reasonable prospect of
success.
In Hasley the Court of Appeal stated that, to deprive a successful party of all or part
of its costs, or to impose a sanction on an unsuccessful party, he otherwise must
show the party
has behaved unreasonably in failing to mediate.
Factors to determine whether or not a party’s decision not to mediate is

unreasonable or
otherwise are:
The nature of the dispute;

Value of the case;
Efforts of the parties at resolving the issues on hand through other means of
dispute resolution and level of success;
Whether the costs of the mediation would be unnecessarily high;
Whether any foot-dragging in setting up and attending the mediation would have
been detrimental to the process; and
Whether there is any indication as to the success of the outcome of the mediation
process
Mediation as an ADR method will not be suitable in the following cases:
1 Where the onus lies on the court to decide issues of law and construction, which
can impact the relationship between the parties far beyond the parties present
contractual relations into the future.
2 In a situation where the parties want the court to decide on a recurrent point of law
such that the decision will be established as a reference point for future decisions.
3 When confidence is eroded as a reason of criminal accusations against an

individual or group of persons, mediation cannot be seen in the future as credible in
such an instance where the person(s) will be involved.
4 Instances in which a party seeks some injunctive relief to shield his position.
5 Considering the fact that the cost of mediation can sometimes be prohibitive,
especially when the sum to be mediated compared to mediation cost is relatively
insignificant.
3.4 Advantages of mediation
1. The mediator can kick start and enhance communication between parties and
restore communication between estranged parties, breaking down all barriers that
may hinder the smooth resolution of disputes.
2. The parties by the ingenuity of the mediator can help parties discover areas of
common interests and thus reach settlements that enhance interests of all parties
involved.
3. Mediation is flexible as there are no set rules or binding laws except those that the
parties agree amidst themselves, they set the rule of the process and the voluntary
nature of the process gives it the credibility and integrity on any agreement reached
because the parties are in charge.
4. Mediation is cost effective in that the whole process is not cumbersome in relation
to litigation. The parties call the shots as to how fast the disputes can be resolved
as it saves cost of paying lawyer fees, filing fees and all the fees that accompany
litigation.
5. It is reconciliatory to the parties because it takes away animosity and suspicion

and brings about openness and amicable resolution of disputes. This helps parties
to preserve relationships and even open up new opportunities for enhanced future
relationship (business or otherwise).
Shortcomings of Mediation Procedure:

The confidential nature of mediation process gives no room for a culture of
precedent development.
Due to the fact that mediation outcomes are not published in public domain there is
no mechanism to measure the effectiveness of mediation as an ADR process.
The mediation process is enhanced:
When parties understand the issues in dispute and maintain objectivity at

resolving
the issues.
The parties are not rigid, willing to give and take for amicable settlement
They do not view their resolve to mediate as a sign of weakness.
4.0 CONCLUSION
Mediation as a method of alternative dispute resolution has been around for a
very long time. Due to the globalization of commercial transactions and the
opportunity to parties for harmonious settlement of disputes arising from such
transactions, the mediation process is becoming more popular.
5.0 SUMMARY
In this unit you have learnt about the growth of Mediation, the features,
advantages and the possible shortcoming to such approach.
Discuss the features of mediation according to Goldman.
Discuss giving examples of situation when mediation will not be applicable.
7.0 REFERENCES
Goodman, A., 2010. Mediation Advocacy, .n edn, Xpl publishing, United
Kingdom.
Olagunju, O., 2007. The Seven Secrets of Effective Conflict Resolution,
ADR Pre-Certification Course, Negotiation & Conflict Management Group and Aina,
Blankson &Co.
UNIT 2 Conciliation
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Conciliation Defined
3.2 Conciliation Agreement
3.3 Types Of Dispute For Conciliation
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Conciliation as a means of settling disputes though recognized by the Act has not
been of
much use compared to other processes.
2.0 OBJECTIVES
At the end of this unit students must be able to discuss conciliation as a means of
settling
disputes.
3.0 MAIN CONTENT
3.1 Conciliation
Conciliation is the process of bringing parties in dispute together, with whose
consent a
third party is brought in to settle the dispute. The conciliator in this instance will draw
up and propose the terms of an agreement designed to represent what in his view is
a fair compromise of the dispute, after having discussed the case with the parties.
As a general rule, conciliation is essentially governed by the decision of the parties.
But it is also governed by the statutes as operative in . where there are statutory
provisions on conciliation.
Conciliation agreement
Parties to an agreement may decide that disputes arising there from shall be settled
by conciliation. The conciliation clause only needs to be inserted in the substantive
agreement. The clause may read that “if any dispute or difference shall arise
between the parties to this agreement from or in connection with this agreement this
agreement or itsperformance, construction or interpretation or otherwise, the parties
shall endeavour to resolve it by agreement through negotiation conducted in good
faith. If they are unable to agree, the issue shall, in the first instance, be dealt with by
conciliation, the conciliator may be chosen jointly by them. Sometimes it may be
agreed that the conciliator be appointed by a special body or person .In case the
conciliation process fail provision may be made for the dispute to be referred to
arbitration.
Types of dispute for conciliation
a .Commercial Dispute: This kind of dispute may arise in any field of commercial
endeavour including those arising from corporate disputes, franchise, agency,
Intellectual
property, industrial and labour disputes
b. Family Disputes: Conciliation is confidential in nature and is particularly suitable
for the settlement of disputes between husband and wife in matters relating to
separation, granting custody of children, property and finance. Although, this method
of ADR is yet to be fully embraced in .
c. Community and Neighborhood Disputes
Communal disputes are often very volatile and can arise in various ways. Disputes
can arise from use of land or water. It can also be religious, ethnic or racial. Issues
involving demands for compensation for environmental damages resulting from the
exploitation of crude oil can be settled amicably through conciliation.
International Disputes arising between parties from different countries, or disputes
arising between sovereign states who will not like to negotiate directly with the other
country for reasons of prestige.
The option of the parties to conciliate may arise at any time in the course of resolving
their differences. It may be chosen as the first step in resolving a conflict or it may be
employed at the stage where negotiations have failed between the parties. Where
talks in a negotiation become deadlocked, parties may decide to conciliate, in which
the unbiased view of the conciliator will be given to the parties to arrive at a
settlement.
4.0 CONCLUSION
As seen from the line of discussions it can be safely deduced that the use of
conciliation as an alternative means of settling disputes in this country is not really
popular. But it is certain that as the times go by the process will attain greater use by
the courts and disputants alike.
5.0 SUMMARY
The conciliation process involves the consent of parties in dispute to a consented
settlement by a third party chosen by them to settle their differences by giving them
options that will lead to a settlement.
Discuss conciliation as a means of settling disputes between parties.
7.0 REFERENCES/ FURTHER READING
Orojo, J.O and Ajomo, M.A. 1999. Law and Practice of Arbitration and Conciliation in
., Mbeyi and Associates, ..
Peters, D. 2006. Arbitration and conciliation Act Companion, Dee-Sage .
Limited, ..
Arbitration and Conciliation Act, Cap 19, Laws of the Federation, 1990
MODULE 3 ARBITRATION
UNIT 1 Nature of Arbitration
UNIT 2 Sources of Arbitration Law
UNIT 3 Contents of arbitration Agreement
UNIT 4 Arbitration Institutions
UNIT 1 NATURE OF ARBITRATION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Arbitration Defined
3.2 Features of Arbitration
3.3 Types of Arbitration
3.4 Forms of Arbitration
3.5 How Arbitration Arises
3.6 Advantages of Arbitration
3.7 Limitations of Arbitration
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The process of arbitration is used between parties to resolve disputes arising out of
commercial/contractual agreements, without the formalities of litigation and regular
court procedures. The enhancement of relationship between conflicting parties gave
rise to the growth and development of Arbitration as an alternative means of settling
disputes. This form of dispute settlement has become very popular because it
reduces time and cost which would have been wasted in the process of litigation.
2.0 OBJECTIVES
In this unit you will learn the following:
1. The definition of arbitration
2. Features of arbitration
3. Forms of arbitration
4. Advantages and disadvantages of arbitration
3.0 MAIN CONTENT
3.1 DEFINITION
Arbitration is a procedure for settlement of disputes between parties without recourse
to the court of law. It is a private arrangement by parties to submit disputes to one or
more uninvolved and impartial persons to resolve the points of disagreement. The
decision of the arbiter is final and binding on the parties. Also Halsbury’s laws of
England define arbitration as:
“the reference of a dispute or difference between not less than two parties for
determination, after hearing both sides in a judicial manner, by person or persons
other than in the court of competent jurisdiction.”
From the foregoing definition, it can be deduced that there must be more than one
party to a dispute. They must have agreed to arbitrate, agreed on the arbiter and
finality and binding nature of the arbitral decision.
3.2 MAJOR FEATURES OF ARBITRATION
a) Informal procedures: parties to arbitration must have agreed to terms that the
procedure will be informal and would be devoid of the complexities of
courtprocedures in matters of litigation. The ultimate goal is to keep the process
simple.
b) Consent to arbitration: A written agreement by the parties to resolve present and
future disputes by use of impartial arbitration is a must if there is to be recourse to
arbitration. The agreement serves as consent for the purpose of establishing the
jurisdiction of arbitration. Likewise it places the power to arbitrate on the arbiters.
c) Impartial and Knowledgeable Neutrals to serve as arbitrators: There are varied
interests and fields in human endeavor from which disputes may arise. Based on
this, it is of utmost importance that only experts knowledgeable in the subject matter
and points of disputes should arbitrate. This gives opportunity for a proper decision
to be arrived at. It is also necessary that the arbiters should share no interest in the
rancour.
d) Final and Binding Awards that are enforceable by law: The opinion of consent to
arbitrate is based on the fact that the eventual outcome of resolution is final and
binding. This is pursued as long as the parties are satisfied at the point of resolution.
More so, the parties agree that the document(s) bearing the resolution agenda is
binding and could be used as evidence.
e) Mutuality: There must be consensus between the parties to an arbitration
agreement. It is trite that without agreement on the side of both parties there cannot
be a valid arbitration agreement.
3.3 TYPES OF ARBITRATION

a) Non binding arbitration - This form of arbitration aids the parties in making their
own settlement. The role of the professional arbiter here is to guide the parties in
reaching their own conclusion. The decision reached is purely that of the parties.
b) Binding Arbitration: This form of arbitration result in an award, enforceable in the
courts. The procedure involved in this form of arbitration is very similar to activities of
litigation. It comprise of a formal presentation of the dispute, followed by handing out
of evidence which in this case maybe documents or human evidence. There is then
the setting up of an arbitration panel that serves to control the proceeding while
maintaining neutrality. The arbitration panel is always a maximum of three
experienced personnel.
3.4 FORMS OF ARBITRATION
Arbitration can be categorized into four namely, Domestic, International, Institutional
and Ad hoc.
1. Domestic Arbitration: it refers to arbitration between parties who are residents of
the same country. These parties have commercial contracts which guide their
businesses in that country. Any disagreement resulting from operating the
contracts can be resolved via domestic arbitration.
2. International Arbitration: This is in converse to domestic arbitration. It is
international in nature and occurs when the parties to an arbitration agreement
have their business in different countries. It could also be the case when the cause
of arbitration agreement traverses beyond the borders of a country.
3. Institutional Arbitration: It arises where parties agree as stated in their agreement
that in the case of future disputes, the resolution procedure will be subject to the
rules of a named arbitration agency or institution. Such arbitration agencies
include the International Chamber of Commerce (ICC) in Paris, American
arbitration Association (AAA), The Regional Centers for Arbitration in Kuala
Lumpur, Cairo and ..
4. Ad hoc Arbitration: This arises in a situation where parties in their contract
agreement do not refer to arbitration rules of commercial arbitration agency but is
entered into after a dispute has arisen. Parties to this type of arbitration usually
establish their own rules of procedure that may be made to fit facts of dispute
between them as the disputes arises.
5. Document only Arbitration: This is a form of arbitration in which the arbiters rely
only on the documents presented by the parties in resolving the dispute. Examples
of where this is usually used are in commodity agreements, consumer disputes and
in construction contracts.
3.5 ARBITRATION INITIATORS
There are various ways by which arbitration are initiated. This could be by party
consentto arbitration, order of court, or by statutory mandate. That by statutorily
mandate refers to the situation in which it has already been pre-agreed that disputes
arising from relationship will be settled via arbitration. However, arbitration by party
consent is different from the other two mentioned earlier because it is flexible and
designed to suit the purpose and convenience of the parties involved.
3.6 ADVANTANGES OF ARBITRATION
The rights conferred on parties to choose their arbitration tribunal that will settle their
dispute is an advantage because the liberty to appoint persons on the tribunal
belongs to them. In addition, various other advantages are associated with
arbitration. These include
1. Privacy: Parties have the privilege of keeping their secrets intact. At times, the
purpose in arbitration is to protect the sensitive interest of the parties from filtering
to the public.
2. Liberty to choose venue for arbitration: parties are at liberty to choose a venue
that is convenient for both parties.
3. Power as to choose law: as regards disputes to be settled by arbitrators, parties
have the power to decide the applicable law bearing in mind their convenience and
protection of mutual interest.
4. Dispute resolutions are achieved in time: issues creating disagreements between
the parties are quickly resolved. This gives parties the opportunity to resolve conflicts
without going through the burden of time wasting as may be the case of litigation due
to unavoidable court procedures.
5. Cheap: the simplicity and flexibility that are associated with arbitration procedure
may save time and money. This is in contradiction to litigation where several
adjournments, injunctions etc. are coped with before a judgment is reached
6. Finality of decision: it is a general rule that the decision of an arbitration panel is
final and binding upon the parties and no appeal lies in this instance.
3.7 LIMITATIONS OF ARBITRATION
1. Arbitration expenditure may be high
Arbitration may not necessarily be a cost saving alternative to resolving disputes
than litigation. First, arbitrator’s fees and expenses must be paid by the parties which
can be substantial. Depending on the arbitral institution (if one is used),
administrative fees and expenses may be high especially if fees are assessed in
reference to amount in dispute.
Fees will also be paid on other facilities needed to facilitate a smooth arbitral process
which adds to the cost of arbitration. These myriad of fees can make arbitration
really exorbitant.
2. Inability to join Parties
There are millions of different contracts from which disputes may arise and parties
resolve to arbitration. Issues arising may range from simple to complex ones. A
construction contract for example can be very knotty when dispute arise where
several aspects of the contract have different parties executing them. In such a
situation special provisions need be inserted in the arbitration clause to resolve such
disputes, otherwise it may be impossible for the arbitral tribunal to consolidate the
disputes since it has no statutory power to do so.
3. Independence of Awards
Decisions reached in arbitration proceedings are confidential which makes it difficult
to have precedents to follow when there are similar facts and issues in dispute to
which arbitrators can refer. Since the system of precedents is not applicable in
arbitration, each award stands on its own.
4. Limited Powers of Arbitrators
Arbitrators are limited in the powers they can exercise in the course of resolving
disputes between parties. Such powers as vested in the courts to compel attendance
of a party or witness cannot be exercised by arbitral tribunal. Where it is necessary
to enforce an award immediately, the arbitration tribunal cannot enforce except after
registration in court.
4.0 CONCLUSION
The use of arbitration as a means of settling disputes between parties, most
especially commercial disputes arising from contractual transactions has been on the
rise in recent times. Partly due to the fact that parties to such disputes are willing to
protect their corporate image and ensure a quick and less laborious means of
settling disputes arising from their transactions.
5.0 SUMMARY
In this unit you have been intimated with arbitration as an alternative means of
dispute resolution, the definition, features, advantages and limitations of arbitration.
List the features of arbitration and discuss.
REFERENCES /FURTHER READING
., Mbeyi and Associates, .
Arbitration and Conciliation Act, Cap. 19 (LFN) 1990
Peters, D., 2006. Arbitration and Conciliation Act companion, Dee-Sage . Limited,
..
NEGOTIATION
1 Meaning of Negotiation
2 Negotiation Strategies
3 Sources of Power in Negotiation
4 Negotiation Processes
MEANING AND SCOPE OF NEGOTIATION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Definition of Negotiation
3.1.1 What is Negotiation?
3.1.2 Determining your BATNA
3.2 Methods of Negotiation
3.2.1 Soft method of negotiation
3.2.2 Hard method of negotiation
3.2.3 Firm method of negotiation
4.0 Conclusion
5.0 Summary
7.0 References / Further Reading
1.0 INTRODUCTION
Negotiation is a daily occurrence that happens without a second thought on the part
of the
parties. In daily life negotiation happen between husband and wife, parents and their
children, the housewife negotiating stuffs by haggling in the market place, to the very
complex negotiations that go on in business circles, between states and the nations
of the world.
As much as it is part of daily life, the nitty-gritty of negotiation needs to be
understood, and skills sharpened especially when it gets to the formal and more
advanced settings of
commercial negotiations.
2.0 OBJECTIVES
It is expected that by the end of this unit, you should be able to:
To define negotiation
To discuss the styles in negotiation
Discuss advantages and disadvantages of negotiation if any.
3.0 MAIN CONTENT
3.1 Definition of Negotiation
3.1.1 What is Negotiation?
Negotiation is a process by which two or more parties reach an agreement on
matters that
require a decision between them. The decision on the subject matter of the
negotiation is taken by the two parties themselves and not by a third party.
Negotiation may come to play in resolving conflicts, structuring commercial
agreements, and managing social relationship to mention a few. It may also involve
domestic transaction such as banking, commercial or property transaction.
Negotiation can also be international in nature spanning transactions in crude oil,
imports of industrial goods and services.
Negotiation is a skill that needs to be acquired and developed. Also it is an art that
needs to be perfected for effectiveness and achievement of purpose. Before a
decision is taken as to whether a matter should be resolved by negotiation or by
other processes, the Best
Alternative to Negotiated Agreement (BATNA) must be taken into consideration.
3.1.2 DETERMINING YOUR BATNA
Where parties fail to reach an agreement in a negotiation, several alternatives are
available to them. The most preferable of the alternatives is called the Best
Alternative to a Negotiated Agreement (BATNA). The option for BATNA is however
due to the fact that what was desired when negotiation was employed will not (or did
not) provide the result expected (proving a failed negotiation process). This therefore
means that, the moment a best alternative to a negotiated agreement is found, the
alternative becomes the option that brings limit to discussion. This limit will therefore
be the worst case scenario.
No one will invariably be willing to go below the BATNA. In accessing your BATNA
which require skills and preparation, the focus must not be on pecuniary gains.
Factors such as the time required to strike the deal, risk, tolerance and relationships
must be considered. A more tasking aspect is the ability to gain information on the
best alternatives available to the other party. This requires hard work. The ability to
know the BATNA of the other party is crucial so as to enable the negotiator
determines the offers that are acceptable in the process of bargaining.
Moreover, assessment of the BATNA of both sides aid in foreknowing if there is any
possibility of agreement between parties to a negotiation and also lead to
determining whether there is much room to bargain or little. While considering the
BATNA of the parties involved in a negotiation, it is possible to determine a point of
connection (or agreement) between the parties. This point of connection is known as
the Zone Of Possible Agreement (ZOPA). Based on this, a ZOPA is achieved when
there is an overlap of the bottom line position. For instance, in negotiating for the
awards of maintenance of children in a divorce suit, the mother’s bottom line may be
K600 per month while the father’s bottom line may be K400. Due to the large
difference in the parties’ requests, it can be concluded that there is no ZOPA.
However, if the father’s bottom line (i.e. the amount he is willing to part with) is
K1000 per month, and the mother’ bottom line (i.e. the amount she is willing to
receive) is K 600, and then a Zone of Possible Agreement (between K600 and K800)
exist.
When there is a proper evaluation of BATNA, the possibility of coming out of a

negotiation with good award is strong. Inability to determine ones BATNA and that of
the other party can lead to an outcome that is below what the best alternative could
provide.
3.2 METHODS OF NEGOTIATION
There are different methods that are open to Negotiators. The one most often
adopted is influenced by personality. The methods of Negotiation have been
classified into three distinct forms which are soft, firm and hard.
3.2.1 SOFT METHOD OF NEGOTIATION
In negotiating a deal, some negotiators prefer to adopt procedures that are friendly
and accommodating. They tend to carry out the process to reach an award in such a
way that the relationship and interaction is kept intact. The aim is to avoid hurting the
other party while at the same time undue privileges may be given unawares. This at
times could be detrimental to the negotiators’ interest. Though this method is
welcoming, it on the other hand has its disadvantages. Such disadvantages include
the soft negotiator being prone to
manipulation, unwarranted giveaways, reaching agreements that are below the best
outcome that could be and etc.
3.2.2 HARD METHOD OF NEGOTIATION
This is a direct opposite to the soft method. This style of bargaining is hard and
uncompromising. The negotiator starts up high and concedes piecemeal. It is
forceful and tends to compel the other party to submission. The snag will be when
the other party too puts up a diehard stance which may bring the negotiation to a
stalemate. Negotiation will eventually break down as parties maintain the hard
stance and a breakdown in communication is inevitable. This could prove a lose-lose
situation.
3.2.3 FIRM METHOD OF NEGOTIATION
Contrary to the two methods of negotiation highlighted above is a method which
stands in between. It is an approach for highly skilled negotiators. The negotiators
employing this method are resolved in their request while considering the interest of
the opposing party. They are well determined to get the best deal out of the
discussion. It is the most preferred method.
4.0 CONCLUSION
Negotiation as an alternative dispute resolution process has been around for a long
time.
Those in the field of practice or those aspiring to be professional negotiators must be
willing to learn by training, and enhance their practice by adopting the mix of the
forms of negotiation for optimal result. It is worthy of note that styles and strategy
may change in the course of negotiation, and more than a method may be combined
in order to achieve set goal.
5.0 SUMMARY
In this unit we have discussed negotiation as an alternative dispute resolution
technique.
We have defined what negotiation is and the styles of negotiation and how the
combination of styles can help the negotiator achieve desired result.
NEGOTIATION STRATEGIES
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Negotiation Strategies
3.1.1Competitive Approach
3.1.2 Collaborative Approach
3.2 Negotiation Tactics
3.2.1 Promise
3.2.2 Bloated Negotiation Team
3.2.3 Threat
3.2.4 Extreme initial position
3.2.5 Psychological ploy
3.2.6 Deadline
3.2.7 Lack of Authority
3.2.8 Nibble
4.0 Conclusion
6.0 Summary
1.0 INTRODUCTION
This unit will be focused on the approaches to negotiation and the tactics employed
by negotiators at the bargaining table in order to have a favourable and successful
process.
2.0 OBJECTIVES
At the end of the unit, you should be able to
1. Explain the negotiation strategies
2. List and discuss the tactics used in negotiation
3.0 MAIN CONTENT
3.1 NEGOTIATION STRATEGIES
Negotiations strategies are the methods negotiators use to achieve their real
objectives in order to reach an agreement on the matter under negotiation. There are
two types of negotiating strategies:
Competitive
Co-operative
3.1.1 COMPETITIVE APPROACH
The competitive approach which is also called the positional approach is
characterized by a win/lose tactics. It occurs where parties take a stand and are not
ready to shift or concede to the other. In this approach, the parties maintain an
attitude and position of winner takes all. To be able to achieve their goals, parties
resort to scheming in order to gain an advantage over the other. The approach
creates competition between the parties.
This strategy is inimical and usually produces an outcome that leaves a bitter taste in
the
mouth of the defeated party. The characteristics of this approach make it unsuitable
for
parties that are willing to maintain their relationship beyond the life of the dispute.
The approach may also lead to a lose/lose situation where the parties are strong on
their position and are unwilling to give in to each other. Where this happens, the
relationship between the parties may be sore and over.
ADVANTAGES OF COMPETITIVE APPROACH
The winner takes all
Gives the winner a sense of fulfillment
DISADVANTAGES
Puts a strain on relationship (family, commercial etc)
Loss of future opportunities that can emanate from the party that lost out in the
negotiation
There may be a deadlock where the other party also decides to take a stand
where both parties lose.
3.1.2 COOPERATIVE APPROACH
The cooperative approach which is also called the problem solving approach is
characterized by a win/win tactics. The negotiators are desirous of having a peaceful
settlement of disputed issues in such a way that both parties gains at the end. The
parties seek to work out a bargain that is profitable to all concerned. Moreover, in
order to adopt the win/win strategy, negotiators need to:
a) Draw a line of difference between the parties and the problem to be solved. By
this, issues are resolved and personalities of parties are preserved.
b) Pay close attention to the purpose they set out to achieve, and not maintain an
unyielding stance that can jeopardize the whole process.
c) Display ingenuity in devising several alternatives by which the process can be
successfully negotiated.
d) Decide that the result of negotiations be based on some objective yardstick that is
measurable
Parties that resolve from the beginning of negotiations to allow for a fair and
equitable process with objectivity in focus by adopting the collaborative strategy are
able to have successful negotiation without straining future relationship It is worthy of
note that the strategy to adopt will be decided on the nature of transaction and
circumstance.
3.2 NEGOTIATION TACTICS
Negotiation is viewed by many as a must win, nothing short of win is acceptable. To
many it is a do or die affair, win by whatever means. With this mindset negotiators
are prone to use every kind of trick in the achievement of their goals which are often
unethical. Based on this, negotiators employ different tactics to achieve, at times,
their selfish goals. These tactics are discussed below.
3.2.1 Promise
This tactic is premised on the offer of the future benefits as a trick to secure
immediate concession (if you sell this to me at a cheaper price, then I will be buying
from you and bring you more customers). Many times negotiators find themselves in
a situation where they are promised future deals if concession can be granted in
present transaction. As much as future deals are desirable the present must not be
sacrificed on the altar of a future deal that may never materialize.
3.2.2 Bloated negotiating team
This trick is intended to harass and intimidate the opponent. This trick is played out
by overwhelming the opponent by the number of negotiators in a team. This can be
done by bringing in experts in all the relevant fields of the negotiation process.
However, a well informed negotiator with adequate preparation will not be daunted
by the number on the opposing side.
3.2.3 Threats
A party may issue threats to intimidate the other party and thereby resort to making
hasty decisions that can be detrimental to his case. This happens especially in a
situation where the party issuing threats have an advantage/information over and
above the other party. A professional negotiator will weigh the threat and the
consequence that will attend to noncompliance.
The use of threat will not achieve its purpose when the party being
threatened is able to decode the other party. This eventually becomes detrimental to
the negotiator issuing the threat.
3.2.4 Extreme initial position
The extreme initial position is a tactic commonly used by competitive negotiators by
setting the initial stakes high and expecting the other party to make an offer that will
fall within the range of acceptable position. This tactics works more where the other
party is not well prepared for negotiations. When the necessary information is not
harnessed to know the options available and how to respond, the party becomes
vulnerable to the antics of the other party. The danger in this position is that party
may view the other party as unserious and may respond in an outrageous manner.
This situation makes the parties far away from arriving at a consensus. Negotiating
for a property, the assignor may fix a price that is very high and if the buyer is not
aware/ informed of the worth of such property in the area may eventually pay more
than the property is worth.
3.2.5 Psychological ploy
This trick is often devised by negotiators on their opponents to secure favourable
concessions for themselves even if it is detrimental to the other party. The
psychological ploy can be used in various ways, like feigning ignorance or lack of
competence. A party in opposition negotiation may use this trick to gather
information not available to him in order to strengthen his negotiation.
The psychological ploy tactic can also manifest in a situation where in the team of a
negotiating party one of the team acts as a mediator. This ploy is devised in the
situation where by all other members are unyielding and difficult in their demand but
this fellow plays the devil’s advocate breaking the truce between his team and the
other party to reach a negotiated agreement where ordinarily there would not have
been. The kind of agreement reached in this instance is to the advantage of the
mediator’s team
3.2.6 Deadline
Negotiators will always seek to close a deal in no time by issuing deadlines. When
deadlines are issued, it pressures the other party into taking a not well thought out
decision, especially if such depends on the outcome of the negotiation to take other
decisions. For instance, if a man owes a bank and he has a property he wishes to
sell to offset the debt. The other party may have information that might be used to
rush him into decision and which will not be favourable to him. Therefore before
rushing to meet a deadline, a negotiator should weigh the consequences of not
meeting the deadline. He should be faced in determining what in real terms will be
the price to pay for losing this deal as against other options. A negotiator should be
wary of issuing deadlines that he does not intend to follow up, which labels him as
unserious and lacking integrity.
3.2.7 Lack of authority
It may take months for parties in negotiation to come to an agreement and when
parties are getting ready to seal the deal, a party may then declare he has power to
negotiate but not make final decision, therefore may need to resort back to his
principal or some authority to approve or ratify the agreement. This tactic often is a
plot to buy time to have a further deliberation or review the offer made by other. It is
advisable at the beginning of negotiations that the issue of authority is cleared by
both parties.
3.2.8 Nibble
Nibble is a tactic that can be used by a party on whom an advantage has been
conferred.
It is like an Oliver Twist asking for more. This trick comes to play after parties have
concluded negotiations and a party brings up a request for an additional concession
which may look intangible but ordinarily would not be conceded if it was brought up
during negotiation.
4.0 CONCLUSION
From the foregoing it is important that a negotiator be adequately prepared before
going to the bargaining table. Being able to recognize the opponent’s approach and
ability to decipher the tactics employed by the other party per time and means of
avoiding falling into the trap is important for a successful negotiation.
5.0 SUMMARY
In this unit you have learnt about the types of negotiation strategies and the tricks
employed by negotiators to gain a upper hand in bargaining, howbeit unethical. The
negotiation strategies are competitive and co-operative. The tricks employed include
Discuss the tricks used in negotiations
UNIT 3 SOURCES OF POWER IN NEGOTIATION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1Sources of Power in Negotiation
3.1.1 Competition
3.1.2 Legitimacy
3.1.3 Information
..
76
3.1.4 Precedent
3.1.5 Time
3.1.6 Investment
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The context of power in negotiation is the ability to exercise control over the outcome
of discussions between the parties during negotiation. It is a power play that can
sway the process on the part of the negotiator that can play it well.
2.0 OBJECTIVES
After studying this unit student should be able to discuss the relevance of power and
the sources of power in negotiation.
3.0 MAIN CONTENT
3.1 SOURCES OF POWER IN NEGOTIATION
Sometimes there are some factors that lead negotiation to a particular
predetermined end.
These factors have power to control the process of negotiation and thereby bring the
deal in the favour of the party with such power. This power may be real or imagined.
The power is real when a party is in direct possession of what it takes to direct the
deal to conclude in his desire. It is imaginary when the other party feels or thinks, his
opposing party is capable of leading the deal in his direction of interest. There are
however several sources of power in negotiation. These sources include:
3.1.1 Competition
Competition here refers to the commodity in question. This arises when a party has
sole right and ownership of what is desired by other parties. The scarcity involved in
the commodity drives the negotiation in favour of the owner. This is similar to a
monopolistic market, where there is one seller and many buyers. The fluctuation of
the price of such commodity is also the prerogative of the owner. He can deliberately
manipulate the negotiation to his favour. However, where there are competing
commodities or several owners of similar commodities, the direction of negotiation
can be partly controlled by both the buyers and sellers. This is similar to the law of
demand and supply in which when there is scarcity of supply while there is surplus in
demand, the price is high and vice versa.
3.1.2 Legitimacy
In negotiation, legitimacy is another source of power. The validity placed on items,
commodity or transaction may influence the negotiation. For instance, a NAFDAC
approved drug or food item will easily attract buyers to negotiation. This official
approval will also sometimes affect the price tag as against another original product
without a NAFDAC approved number. Another example is a titled land with
appropriate Certificate of Occupancy. Such property can attract better negotiation
than one without a title. Other forms of legitimacy apart from the official, regulatory or
professional authority are the legal and institutional authorities. While legal authority
is rigid, institutional/organizational authority is flexible and can be negotiated.
3.1.3 Information
Information is another strong source of negotiation. The amount of information
available to a party on a deal will put the party at advantage. The available but
scarce information can become the wheel of manipulation in a negotiation, most
especially when the other party is unaware of such viable information. More so,
when a party has prior knowledge about the interest of the opponent in a negotiation
the party is put in an advantage. Such information can be useful in directing the
course of negotiation.
3.1.4 Precedent
Cases in court are based on strategic precedents. The outcome of a decided case
can be used to determine the case at hand. This is also similar to negotiation. The
current practice in a business can be used as a negotiating factor to decide on a
transaction.
Where this is the case, it is concluded that precedents around the business is being
used to make appropriate decision.
3.1.5 Time
Business deals are always timely. The gauge of time is an important factor in striking
a deal. Some businesses depreciate with time while some others appreciate. When
time constraints are placed on a deal, the parties in negotiation are pressured to end
the deal before the set time. For instance, in Europe, football players transfer period
are always bounded by time. Whatever negotiation that would be is fixed within the
time limit. It is required that all negotiations must be concluded before the deadline.
Most times, negotiations close to deadline are always hurried and this many at times
influence the outcome.
3.1.6 Investment
The investment power in negotiation works like a golden handcuff. It is used to get
the opponent to make commitment at the beginning of a deal. A party who has
invested so much in a business will be very unwilling to part with the business just
because of his huge investment, even though he is no more willing to continue with
the business. The size of such investment may be used by negotiators to persuade
the other investor to make larger concessions in the future and to hold down his
interest. The reasoning behind this is that with the investment made, the party will
feel a sense of loss to rescind the transaction. On the long run even when faced with
a situation that he would not have ordinarily consented to he will be unwilling to
relinquish the transaction because of the investment at stake.
4.0 CONCLUSION
Having discussed what power is in negotiation, a negotiator must understand his
source
of power and be able to use it to his advantage, likewise he must be able to identify
the opponent’s source of power so as to be able to counter them when it will be to
his own disadvantage.
5.0 SUMMARY
A negotiator must fully understand the power play in negotiation to be able to have a
favourable concession and a successful negotiation.
List and discuss the sources of power in negotiation
7.0 REFERENCES/ FURTHER READING
Fisher, R. Ury, W and Paton, B 1991. Getting to yes: Negotiating agreements without
giving in, 2nd edn., Penguin Books, New York
Nwosu, Kelvin N. 2004. Critical issues in negotiation, Negotiation and dispute
resolution Journal, Vol. 1, No 1, p. 1 – 22
Watkins, M. and Rosegrant, S, 1996. Sources of power in coalition building,
Negotiation Journal, vol. 12, p 57
UNIT 4 NEGOTIATION PROCESS

CONTENT
1.0Introduction
2.0 Objectives
3.0 Main Content
3.1 Negotiation Process
3.1.1Preparation phase
3.1.2 Opening Phase
3.1.3 Bargaining Phase
3.1.4 Closing Phase
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
In this unit you will learn about the phases in negotiation and how important it is for a
negotiator to be adequately prepared for, and thoroughly understand the dynamics of
each of the phases.
2.0 OBJECTIVES
After studying this unit you should be able to discuss and apply the negotiation
processes
in a real life situation
3.0 MAIN CONTENT
3.1 THE NEGOTIATION PROCESS
The negotiation process can be divided into four stages
a. Preparation
b. Opening Phase
c. Bargaining Phase
d. Closing Phase
3.1.1 Preparation
The saying goes that he who fails to prepare is planning to fail. Developing good
plans and preparation are important to the success of any negotiation. A negotiator
must have a mental picture of what he plans to achieve and set out an articulate
agenda to guide the process.
As events unfold in the course of negotiation, methods and strategies may change
but the agenda in place guides and helps the negotiator from deviating from the
substance of negotiation. It is necessary for a negotiator to do his homework well,
gather all relevant information and have thorough understanding that is necessary
about the transaction before going into mainstream of negotiation.
During preparation the following issues need to be considered:
i. A negotiator must know the other options open to him and that of the opponent in
the course of negotiation if they fail to reach a consensus. In all the options open to a
negotiator the best of the options on the scale of preference is called the Best
Alternative to Negotiated Agreement (BATNA).This helps in knowing and assessing
the limit of negotiation award.
ii. Get to meet the parties: the opposing negotiator and the corporate entity or
individual he represents, get enough information about their background and
personal traits.
iii. Be able as a negotiator to put your emotions in check, lest your apparent
weakness or strength that has not been well managed can hinder the success of the
negotiation
iv. Be able to meet to know the benefits the parties are aiming at and be able to
make concessions without jeopardizing your own interests.
v. Review your plans and tactics, and prepare for how to respond and manage
surprises that spring up in the course of negotiation.
vi. Be proactive, think ahead, and envisage circumstances that may warrant
digressing from your agenda and how not to be derailed from achieving your end
goal.
vii. A negotiator must not get emotionally entangled, maintain a clear thought and
objective view point.
viii. The power play can be vigorous with each party doing all that is possible to tilt
the balance to his own favour; in this a negotiator must be vigilant and pay close
attention to what is going on at the bargaining table.
ix. Detail your bargaining work plan, determine your upper and lower limit, and also
develop negotiation work plan detailing the bottom line, acceptable and the ideal
positions.
3.1.2 Initiation
The initiation stage is first in line before the bargaining stage in negotiation. This
stage is very crucial because on it rests the success or failure of the whole process.
At this stage each of the parties will state their case, establish the real facts, and
state the main issues to be addressed in the negotiation.
The parties present their problems from their different points of view in accordance to
the needs the parties wants addressed. At this stage also there should be no display
of emotions in stating the problem at this stage, there is a need to thread softly and
be cautious of just marshaling your position on the matter because it poses the
danger of each party maintaining their own position rather than seeking opportunity
for mutual gains.
In addition, parties should state clearly and have a thorough understanding of
issues in dispute. This helps the parties to focus on the issues. By establishing the
real facts parties will separate the supporting facts from conclusion and test all
assumptions.
Where parties intend to adopt the collaborative strategy, the initiation stage is the
time to set the tone, check for common grounds between the parties to agree on.
Who should open discussion may become a problem. There are different ways to
resolve the problem which include considering the subject matter of the transaction,
the custom of the trade may indicate who starts up the discussion. The venue of the
meeting may determine the one who takes the first shot. Negotiation may be opened
by the party hosting, or from whose instance the meeting is convened. The person
with a weak case can allow the other party to open discussion to be able to ascertain
whether the other party is aware of the weakness .Where a party has a limited
information, the onus of starting discussion maybe shifted to the other party which
may also help gather information from the other party.
3.1.3 Negotiation
This is the phase where all the preparations of the parties come to the test. The
negotiation stage is also called the bargaining phase. This is where the parties’ bare
issues and analyze their options. Here they agree on points noted at the preliminary
stages. Also, the negotiation phase is one for persuasion on both sides to accept
offers and counter offers by either party. It is a time to influence the other party to
come into agreement .The success of this phase is based on the strategy adopted
by the parties in bargaining. Where the competitive strategy is adopted then parties
will play the power game by using different kinds of tactics to make the opponent
accept their position. The tactics include but not limited to extreme initial position,
use of threat, deadline, and nibble. In a situation where parties adopt the
collaborative strategy, the bargaining phase should be used to discover, synchronize
and decide options that will meet the respective needs of the parties. In order to do
this, negotiators must understand the three elements at play in negotiation
A Subject Matter – this relate to the problems on which an agreement is sought.
B Standpoint – this is stance of parties on the issues to be resolved.
C Interest- Interest refers to the fundamental concern and prospects of the parties
that would be affected by the agreement in the transaction.
At this stage, the communication skills of a negotiator comes in handy, he must know
how to use them to maximize his benefit. It is not uncommon in the course of
negotiation for the parties to have a stalemate situation, where in the course of
negotiation a party remains keen on his point not to shift position. Even when parties
have adopted the win-win strategy, this does not totally negate a stalemate situation.
This happens especially where parties fail to agree on the appropriate means of
solving the problems identified or even where one of the parties in the course of
negotiation decide to adopt the win-lose strategy.
3.1.4 Concluding phase
This is the climax. Both parties would have discussed and reached a conclusion on
pertinent issues in the transaction. At this stage parties must ensure that all queries
and objections raised at the bargaining phase are addressed. At this point the
pertinent issues are resolved, details of the agreement are modified, and all
necessary for an enforceable agreement have been dealt with. Previous agreement
are reviewed and possibly exchanged between the parties for modification or
correction. Parties reach an overall and final agreement and reduce their agreement
into writing. They may both agree on the form of documentation. There are specific
instances where the form of documentation is prescribed.
5.0 CONCLUSION
Having learnt the processes involved in bargaining you must be able to know the
requirement in each stage of the process for effective bargaining.
6.0 SUMMARY
The negotiation process is divided into four stages; preparation, opening, bargaining
and the closing phase. It is not uncommon to find out in some other texts that the
bargaining phase is further divided.
Discuss the phases of negotiation processes known to you.
7.0 REFERENCES/FURTHER READING
Fisher, R. Ury, W and Paton, B 1991. Getting to yes: Negotiating agreements without
giving in, 2nd edn., Penguin Books, New York
Nwosu, Kevin N., Critical Issues In Negotiation, In Negotiation and Dispute
Resolution
Journal, Vol. 1 No 1January, 2004, pp 5-13.
Watkins, M. and Rosegrant, S. 1996. Sources of in coalition building, Negotiation
Journal, vol. 12, p 57
ADR Pre-Certification Course, Negotiation& Conflict Management Group and Aina,
Blankson &Co.
MODULE 5 OPTIONS AND PROCESSES OF ADR
UNIT 1 Other forms of ADR
1.0 Introduction
2.0 Objectives
3.0Main Content
3.1 Other forms of ADR
3.2 Mini-Trial
3.1.2 Mediation/Arbitration
4.0 Conclusion
5.0 Summary
UNIT 1 CONTENT OTHER FORMS OF ADR
1.0 INTRODUCTION
Having discussed the major ADR processes operative in ., major in the sense that
they are mostly used in the settling of disputes either commercial or otherwise.
Yet there are other ADR processes that are not particularly common to this clime but
are emerging as a result of the ever expanding reach of global commercial
transactions. Some of these methods may still be alien to this environment but will
become popular in no distant future because in all ramification of life the world has
turned a global village.
2.0 OBJECTIVES
The objective of this unit is to intimate the student to other methods of ADR that can
be used in settling disputes.
3.0 MAIN CONTENT
3.1 MINI- TRIAL
This is acclaimed to be the most structured form of mediation operative primarily in
the United States of America. The purpose of mini- trial is to put high- level
executives, one from each party, into an environment in which the strength and
weakness of their respective cases are drawn to their attention. The argument is that
faced with the time and costs likely to be involved in litigation will induce them to
reach a compromise.
The mini-trial procedure is relatively simple. It entail a hearing of one or two days
sometimes called “information exchange”, follows a limited form of disclosure of
documents and the exchange of briefs. Lawyers to each of the party make a brief
presentation outlining the evidence they will call in the event of a trial.
A ‘neutral adviser’, who can be a retired judge or senior lawyer, will give a
preliminary opinion as to how a court would likely react. Information exchange by the
parties signal the commencement of negotiation between the two principals, either
with or without the intervention of the neutral adviser.
On the long run parties may not reach an agreement which prompts them to ask the
neutral adviser to give a no binding opinion as to what the result might likely be if
they resolve to litigation. This may eventually lead to a settlement.
3.1.2 MEDIATION /ARBITRATION (Med/ Arb.)
The Med/Arb is a hybrid between mediation and arbitration. This process emanate
fromthe agreement of the parties that if they are not able to reach a mediated
agreement then, the mediator will take up the role of arbitrator to decide the dispute.
This process is used in the U.S, especially in labour disputes. This method however
raises some pertinent questions as to the readiness of the parties to give necessary
information, since they are aware that if the process does not result in a mediated
agreement, the mediator can put on the garb of an arbitrator to subject the same
issues to arbitration? Can the arbitrator satisfy the requirement of impartiality and fair
hearing when he is already privy to discussions between the parties in mediation?
4.0 CONCLUSION
These other methods of ADR though not yet popular in this country, will definitely
become a norm in some years to come.
5.0 SUMMARY
The mini trial process is executive in nature and it is required that the representative
of each of the parties have adequate knowledge of issues in dispute and have
enough
authority to act on behalf of the party represented.
Identify and discuss the ADR process you have learnt in this module.
7.0 REFERENCES/ MATERIALS
., Mbeyi and Associates, .
Peters, D., 2006. Arbitration and Conciliation Act companion, Dee-Sage . Limited,
Unit 2 MECHANISMS FOR THE PRACTICE OF ADR

1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1.1 Objectives of multi-door courthouse
3.1.2 Options at the multi-door court house
3.1.3 Merit of multi-door courthouse
3.1.4 Practice and Procedure at the multi-door courthouse
3.2 Citizens Mediation Center
4.0 Conclusion
5.0 Summary
CONTENT
1.0 INTRODUCTION
This unit is aimed at introducing the student to the mechanisms for the practice of
ADR.
2.0 OBJECTIVES
The student at the end of this study unit must be able to understand the objectives,
functions and the process applicable at the multi-door courthouse.
3.0 MAIN CONTENT
MULTI-DOOR COURT HOUSE
A multi-door courthouse is a court connected Alternative Dispute Centre which offers
different forms of alternative dispute resolution processes. It is a concept instituted to
augment and support available resource for access to justice.
3.1.1 OBJECTIVES OF MULTI-DOOR COURTHOUSE
1) To provide support to the regular court in the resolution of disputes and
dispensation of justice
2) To harness and utilize the vast human and legal resource resident with retired
justices through service in mediation, arbitration and other alternative dispute
resolution process.
3) To provide quick access to justice, reduce or eliminate the frustration of litigants at
regular courts by resorting to ADR
4) Model and develop the executive judge notion and plan how best settlement
could be achieved among litigants
3.1.2 OPTIONS IN MULTI-DOOR COURTHOUSE
1) EARLY NEUTRAL EVALUATION
An experienced lawyer, retired judge or a dispute resolution specialist are experts
that sit to consider the relative strength and weakness of each parties position,
analyse the likely result of the process and advise the parties accordingly.
2) MEDIATION
A voluntary and informal process in which an unconnected third party called the
mediator helps parties to amicably resolve their dispute by arriving at a mutually
beneficial agreement. The mediator does make decision rather the parties decide
the terms of agreement.
CONCILIATION
Conciliation is presided over by a neutral third party, who if in the circumstance
can contribute his opinion as to the merit of the dispute and give recommendation
or advice to the clients.
ABITRATION
The arbitration process of ADR involves a third party referred to as arbitrator who
preside over a dispute and has the power to give a binding and enforceable
“Award”
3.1.3 MERITS OF MULTI-DOOR COURTHOUSE
1) Confidentiality is ensured, document, statement and pieces of evidence tendered
during ADR sessions at multi-door courthouse are confidential and protected from
disclosure for all purpose.
2) It is hence an amicable settlement of dispute and promotes relations between
parties rather than aggression and animosity.
..
3) The time spent in ADR process is relatively lower to the time wasting, energy
consuming and emotion sapping process of regular courts.
4) It helps reduce congestion and will on the long run help rid the court of the long
list of cases that besiege our courts.
5) The multi-door concept helps parties to choose the process suitable to advance
their cause and meet their needs
4.0 CONCLUSION
In other climes, the ADR options have been in use for a long time and has gained
wide
acceptance. Parties that have disputes are being encouraged first to submit to
Arbitration
or Mediation or use any Alternative Dispute Resolution Procedure. The growth and
recognition of these procedures have increased, thereby prompting the Courts to first
subject parties to negotiate. In Dunnet v. Railtrack Plc (2002) 1 WLR 2434 at 2436-7,
the defendants though won the case was denied the cost in the Court of Appeal
because it refused invitation to mediate.
The Court said:
“Skilled Mediators are now able to achieve results satisfactorily to both parties in
many
cases which are quite beyond the power of lawyers and Courts to achieve. A
Mediator may be able to provide solutions which are beyond the powers of Court to
provide”
The English Court enforced an ADR clause without much ado, in Cable & Wireless v.
IBM, (2002) EWHC 2059 (com.ct). The parties had entered into a ten year
agreement which contained the following ADR provision:
“If the matter is not resolved through negotiation, the parties shall attempt in good
faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR)
procedure as recommended to the parties by the Centre for Dispute Resolution.
However, an ADR procedure which is being followed shall not prevent any party from
issue proceedings.”
A dispute arose and C & W commenced judicial proceedings without first attempting
an ADR procedure. IBM applied for a stay of action in order to enforce the ADR
procedure. The Judge ordered a stay of judicial proceeding pending ADR.
In Hust v. Leeming C.P. Rep. 59, the Judge described ADR as being “at the heart of
today’s Civil Justice System” and although on the particular facts, it was held that the
defendant’s refusal to mediate was reasonable. Although, defendant had satisfied
the court, that mediation has no real prospect of success in the instant case.
5.0 SUMMARY
In the course of discussions it is very clear that the courts and would be litigants
ordinarily will prefer to settle their disputes by ADR. This is because any of the
processes can be cheaper, faster and often ensure amicable settlement of disputes.
Thus, only where such procedure fails or where the matter is exclusive to the
jurisdiction of the courts will such not be referred to ADR.
TUTOR MARKED ASSIGNMENT
Discuss the objectives and options of the multi door courthouse.
7.0 REFERENCES/FURTHER READING
Orojo, J.O and Ajomo, M.A. 1999. Law and Practice of Arbitration and Conciliation
in ., Mbeyi and Associates, .
Peters, D., 2006. Arbitration and Conciliation Act companion, Dee-Sage .
Limited, .
..
Alternative Dispute Resolution (ADR)

There are other dispute resolution mechanisms that are an alternative to litigation.
These include, inter alia, mediation and arbitration.
Mediation
This is a process of negotiation facilitated by or through the intervention of a neutral
third party called a mediator. He helps the parties to communicate their position on
the issues relating to the dispute and in exploring possible solutions to reach a
settlement. Unlike an arbitrator or a judge, a mediator does not decide or adjudicate
the dispute between the parties. He is merely a facilitator who helps them reach a
consensus by listening to them and suggesting a compromise. Mediation is a
voluntary and non-binding process and parties themselves must be willing to come
to some sort of settlement. The process of mediation is non-adversarial, where
parties are encouraged to look at the broader aspects for their interests instead of
focusing on the narrow aspects of their rights and obligations. The process is not
restricted by legal principles or rules of procedure that are used in litigation. I.e. the
parties are not required to prove their cases on a balance of probabilities, by using
legal rules and principles of evidence or by calling witnesses and exhibits. For this
reasons a mediator is usually more skilled oriented than legal knowledge oriented. A
good mediator must have excellent negotiation and problem solving skills.
In Zambia the process of mediation is “court annexed” i.e. it is triggered by a court

process (in other countries it may be undertaken without a court requiring the parties
to try mediation). Thus O.31 r.4 states “Except for cases involving constitutional
issues or the liberty of an individual or an injunction or where the trial judge
considers the case to be unsuitable for reference, every action may, upon being set
down for trial, be referred by the trial judge for mediation and where mediation fails,
the trial judge shall summon the parties to fix the hearing date.” In the commercial
list, this is normally done at the scheduling conference but note that a judge may
only refer a matter to mediation with the consent of the parties or their counsel. He
can’t force mediation on them.
Advantages of Mediation
(a) Since mediation is not constrained by legality and procedural rules, it is easy
for the parties to tailor a flexible format to suit their own specific requirements.
Thus, medication can be quite informal and speedy to the extent that a simple
or less complex dispute can be settled in a few days as opposed to litigation
or arbitration that may take months or years.
(b) As it is speedy, the costs incurred by the parties are considerably lower.
[Unfortunately mediation processes collapse, as some lawyers are not
interested in a quick settlement].
(c) In mediation, the focus is not necessarily what is legally correct but rather
what the parties’ joint interests are. Thus a party may forgo certain of its rights
in order to arrive at a quick settlement.
(d) Most importantly, parties often have greater commitment to the solution or
decision reached since they fully participated in generating that decision. This
means that the decision reached is more likely to be enduring and respected.
Disadvantages of Mediation
(a) As mediation requires the consent of the parties, it is bound to fail if there is
no goodwill or willingness or good faith on their part to the process.
(b) Mediation cannot succeed if one party is bent on causing delay by insisting on
litigation or one party uses the process simply to delay litigation.
(c) Similarly, mediation is not appropriate and will not succeed if the parties are
desirous of setting a precedent.
Mediation Procedure
The mediator usually starts with a joint session that is attended by the parties and
their representatives. At the joint session, issues in dispute are highlighted by the
mediator and ground rules (e.g. confidentiality and maintaining civility) are set out.
After this the mediator has individual sessions with each of the parties in turn. These
private sessions (sometimes called “caucuses”) help the parties in being more
forthcoming with their ideas and suggestions than they may be in the presence of the
other party. If an agreement is reached, it is recorded in a written form and signed by
the parties. It then becomes a consent judgment that can be enforced like any other
judgment in of the court. [Can a party apply to set aside a consent judgment? No, as
it is not a court judgment. A party can only challenge a consent judgment by
commencing a fresh action in court to overturn it on the basis of it being entered as a
result of fraud, mistake etc.]
Arbitration
The process where a dispute is put to one or more mutual party(ies) chosen by the
disputing parties for a final, binding and enforceable decision.
Characteristics of Arbitration
(a) Parties submit disputes to a mutual arbitrator or arbitrators for a decision on
the merits (i.e. each party will give evidence and be cross-examined etc.)
(b) Each part will have the opportunity to present evidence to the arbitration
tribunal in writing and through witnesses.
(c) Proceedings are more informal that court proceedings and strict adherence to
evidential and procedural rules is not usually required (but Evidence Act does
apply).
Differences Between Arbitration and Mediation

(a) Arbitration is binding once the parties have an arbitration clause in their
agreement i.e. parties are bound by that clause i.e. they must settle the
dispute by arbitration not litigation. Mediation is non-binding.
(b) An arbitrator decides the dispute while a mediator helps the parties
themselves to decide the dispute. Arbitrator performs a quasi-judicial function.
(c) There are formal legal procedures in arbitration (e.g. call witnesses, cross-
examination etc.) but there are no such procedures in mediation and it is not
limited by legal doctrines.
(d) An arbitration award is legally enforceable while mediation is only enforceable
with the consent of the parties.
(e) Arbitration focuses on the rights of the parties. Mediation focuses on the
interests of the parties.
(f) The arbitration process is knowledge-based (i.e. arbitrator must have
knowledge of the law) while medication is skill based (i.e. mediator needs to
possess negotiating skills).
(g) In arbitration, a winner takes all - a win/lose situation. In mediation, both sides
will benefit - it is a win/win situation.
(h) Arbitration can be tedious and costly. In theory, mediation can be speedy
ands cost effective.
Similarities between Arbitration and Mediation

(a) Confidentiality: both processes are confidential. [Mediator tears all the notes
of the medication proceedings before putting the consent judgment on file].
(b) Private: They are not open to the public – they are only attended by the
parties concerned, their lawyers and other representatives.
Advantages of Arbitration over Litigation

(a) Expertise: of the decision maker. An arbitrator is not imposed on the parties
unlike in litigation where the parties have no choice of who should adjudicate
their dispute. In arbitration, parties can choose the decision maker who is an
expert in the subject matter of the dispute.
(b) Finality of the Decision: the courts will always respect a provision that the
arbitration award is final and binding on the parties. This serves to discourage
appeals to the courts of law and to make the provisions for finality meaningful.
In litigation, every decision can be appealed against, except those of the SCZ.
(c) Privacy of Proceedings: If the parties wish proceedings to be shielded from
public scrutiny then arbitration, that is a private forum, is more preferable to
the courts that will rarely deny public access.
(d) Procedural Informality: Since the parties in arbitration determine the
procedural rules to apply to the arbitration they can opt for simplicity and
informality. There is no such departure from procedure in litigation.
(e) Low cost: In theory, simplified procedures tend to reduce costs as does the
lack of opportunity to appeal against an arbitrator’s award. [However, an
award can be challenged by applying to court to set it aside on the grounds
set out in s.17 of the Arbitration Act of 2000 e.g. the award went beyond the
scope of the arbitration].
(f) Speed: The same factors that tend to reduce costs also lead to a more
speedy resolution of a dispute. In addition, parties need not wait for a trial
date to be assigned to them but can proceed to arbitration as soon as they
and the arbitrators are ready. [In arbitration there is a “preliminary meeting” -
like a scheduling conference - where orders for directions are given.]
Note: some of these are only theoretical advantages and in practice they may not be
realized e.g. an arbitrator is paid fees (often quite high) whereas a judge is paid by
the State and not by fees.
Section 6 - Maters subject to Arbitration and Exceptions
S.6(1) states that “Subject to subsections (2) and (3) any dispute which the parties
have agreed to submit to arbitration may be determined by arbitration.”
Subsection (2) gives exceptions

(a) An agreement that is contrary to public policy
(b) A dispute, which, in terms of law, may not be determined by arbitration (e.g.
the winding up of a Co. - can only be done by petitioning the High Court).
(c) A criminal matter, unless permitted by written law or court grants leave.
(d) A matrimonial cause e.g. petition to dissolve a marriage.
(e) A matter incidental to a matrimonial cause e.g. maintenance or custody,
unless by leave of the court.
(f) The determination of paternity, maternity or parentage of a person.
(g) A matter affecting the interests of a minor or a person under legal incapacity
unless a competent person represents such minor/person.
Section 10 - a court is obliged to stay proceedings and refer the parties to arbitration
if there is an arbitration agreement unless the court finds that such an agreement is
null and void, inoperative or incapable of being performed.
Section 11 - Notwithstanding s.10, the court under s.11 may, on application by any of
the parties in the matter that is subject to arbitration, grant the following orders:
(a) An order for the preservation, interim custody, sale or inspection of any goods
that 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; or
(d) Any other order to ensure that an award, which may be made in the arbitral
proceedings, is not rendered ineffectual (or nugatory)
Characteristics of an Arbitration Agreement

An arbitration agreement or clause in a contract is treated as a separate &
independent agreement that survives the termination of the underlying contract. This
is known as the severability or separability doctrine. In, Heyman & Another v.
Darwins Ltd [1942] AC 356, Lord McMillan described an arbitration clause as follows:
“An arbitration clause in a contract is quite distinct from the other clauses. The other
clause set out the obligations which the parties undertake towards each other but the
arbitration clause does not impose on one of the parties any obligation in favour of
the other. It embodies the agreement of both parties that if any dispute arises with
regard to the obligations which one party has undertaken to the other, such dispute
shall be settled by a tribunal of their own constitution. The purpose of the contract
has failed but the arbitration clause is not one of the purposes of the contract.” [See
also Lord Diplock’s three characteristics in Hannah Blumenthal [1985] 1 All ER 34].
The Arbitration Process

For a dispute to be referred to arbitration, the contract between the parties must
contain an arbitration clause to that effect. However, even if it doesn’t, the parties
can enter into an ad hoc arbitration agreement which they sign agreeing to refer their
dispute to arbitration [They must agree - see s.6(1)]
The next stage is to appoint/constitute the arbitral tribunal in accordance with s.12.
How is this done? In general the tribunal is appointed through 1 of the following ways
(a) By direct appointment by the parties pursuant to the procedure set out in the
arbitration clause or ad hoc agreement or otherwise.
(b) In a three-person tribunal, each party appoints one arbitrator and these two
then appoint the third (the chairman).
(c) By an appointing authority e.g. LAZ, Zambia Centre for Dispute Resolution
(ZCDR) , ZCAS
(d) By a competent court.
In the event that the parties fail to agree on the procedure of appointing the
arbitration tribunal s.12(3) states that the appointment shall be as follows:
(a) In an arbitration with three arbitrators, each party appoints one and these two
appoint the third. If (a) a party fails to appoint its arbitrator within 30 days of
receipt of a request to do so from the other party or (b) if the two arbitrators
fail to agree on the third within 30 days of their appointment, then the
appointment shall be made upon request of a party by an arbitral institution
e.g. ZCDR. This decision is not subject to appeal - see s.12(5)
(b) In an arbitration with a sole arbitrator, if the parties are unable to agree, the
arbitrator is appointed, upon request of a party, by an arbitral institution.
S.12(4) - if there is failure even by the arbitral institution, in appointing the arbitral
tribunal, any party may request the court to take the necessary measures to secure
the appointment of the tribunal and the court’s decision is not subject to appeal.
The Role of the Tribunal Chairman

The chairman of a three-member tribunal is also an arbitrator. As such he is vested
with jurisdiction from the date of his appointment just like the party appointed
arbitrators. Where there is a difference among the three (on procedure?) then the
decision of the chairman shall prevail (but the arbitral award is by majority decision).
Qualities and Qualifications of Arbitrators

Whether the arbitration is domestic or international, s.12(6) gives the following
requirements as the necessary qualifications for appointment as an arbitrator.
(a) Qualifications imposed by the parties in the agreement. The arbitration clause
may stipulate the qualifications desired by the parties of the person they wish
to arbitrate their dispute. The appointment will not be valid unless the nominee
meets all the qualifications agreed by the parties. It also follows that any
award made by such unqualified arbitrator is void.
(b) Independence of the arbitrator. The concept of independence of the arbitrator
relates to questions that may arise out of the relationship between the
arbitrator and one of the parties. It may be financial or otherwise. An
independent arbitrator is one who is not under pressure from, or dependent
upon, a party on account of the relationship. An arbitrator should not have
direct professional relations with one of the parties or financial interest in the
outcome of the arbitration. In case of a sole arbitrator in an international 1
arbitration, he should not be of the same nationality as that of either of the
parties.
1
One or more of the parties is not Zambian
(c) Impartiality relates to bias or prejudice of an arbitrator either (i) in favour of
one of the parties or (ii) in relation to the issue in dispute. Partiality of an
arbitrator will be evident in the following circumstances:
a. If he applies a procedure in the arbitration which is not in accordance
with notions of due arbitral process of equality of treatment of parties.
b. If he fails to observe the rules of natural justice.
Termination of an Arbitrator’s Mandate

An arbitrator’s mandate may be terminated in the following circumstances:
(a) By virtue of a successful challenge by a party under Article 13(2) of the Model
Law in Schedule 1 of the Arbitration Act No. 19 of 2000 on the grounds
provided under Article 12(2) of the Model Law [UNCITRAL2 Model Law]
(b) Failure or impossibility of the arbitrators to act in the following circumstances:
a. One is unable to perform his duties due to incapacity
b. If arbitrator fails to act without undue delay [Art. 14 of Model Law]
(c) By an agreement of the parties at any time to revoke/terminate his mandate
(d) By an arbitrator withdrawing due to any reason e.g. his own doubts as to his
impartiality or independence.
(e) When the arbitrator becomes “functus officio” Article 32(2). I.e. his mandate
ends when he makes his arbitral award.
Procedure for Challenging an Arbitrator

An arbitrator’s appointment can only be challenged by a party if there are valid
grounds for doing so. See Article 12(2) of the Model Law. This restriction is intended
to prevent parties from disrupting arbitral proceedings by making frivolous
challenges. To pre-empt such challenges it is incumbent on the arbitrator to disclose
to the parties any circumstances that are likely to give rise to possible challenges in
respect of his impartiality and independence. Where possible this should be done at
the time of his appointment. The challenge procedure is specified in Article 13 of the
Model Law as follows:
(a) The parties may agree on the procedure for challenging the arbitrator;
(b) If there is no agreement the party making the challenge should within 15 days
of becoming aware of the constitution of the tribunal or of the circumstances
giving rise to justifiable doubts as to arbitrator’s impartiality or independence,
send a written statement of reasons for the challenge to the arbitrator.
The following options are available to a challenged arbitrator.

(a) To withdraw/recuse himself - this does not mean he accepts the validity of the
grounds of the challenge.
(b) To withdraw from office if the other party also agrees to the challenge. I.e. ask
the other party and if he agrees with the challenge step down, but again this
does not mean arbitrator accepts the validity of the grounds of the challenge.
(c) The arbitrator can constitute himself into a tribunal for the purpose of deciding
on the challenge. When he does so, he should hear both sides on the issues.
If, after hearing the parties, the arbitrator decides the challenge is successful,
he must withdraw. If he decides otherwise, he may continue with the
arbitration. If the challenging party is dissatisfied with the arbitrator’s decision,
he must within 30 days from the date of receiving the decision, apply to court
for a determination on the challenge. The court will not be hearing the matter
2
United Nations Commission on International Trade Law.
in an appellate capacity but making a decision on the merits of the challenge
itself. I.e. the court will hear the grounds advanced and decide. The court’s
decision is final and not subject to appeal.
Preliminary Meeting
After the arbitrator has accepted his appointment the next sage is to convene a
preliminary meeting attended by the parties and their lawyers. The preliminary
meeting is like a scheduling conference in the Commercial Registry as it is here that
the arbitrator and the parties agree on the future conduct of the arbitration after
which an order for directions is issued by the arbitrator.
Agenda of the Preliminary Meeting

(a) To see the original agreement so as to ascertain that there is an arbitration
clause and its stipulations e.g. arbitrator’s qualifications.
(b) To identify the issues in dispute. Unlike in litigation, the arbitrator is given what
the parties conceive to be the dispute upon which he should arbitrate upon
and the parties must sign off on what the dispute to be resolved is.
(c) The arbitrator’s schedule of charges i.e. his fees and whether the parties
accept these before he proceeds further with the arbitration.
(d) Representation: will counsel represent the parties or not.
(e) The law pursuant to which the arbitration will proceed (but note that the
procedural law to be followed will always be the Arbitration Act of 2000).
In the Matter of
And
In the Matter of the Arbitration Act No. 19 of 2000
(f) Procedures and rules to apply to the arbitration as taken from the Act No. 19
(g) Whether the award shall be reasoned or not i.e. whether the reasons should
be stated for the award or not. But in Zambia; s.16(2) of Act No. 19 of 2000
requires that a reasoned award be given.
(h) Programme for the submission of:
a. Statement of Claim
b. Defence and counterclaim if any
c. Reply and defence to counterclaim if any
(i) Discovery: Timetable for the exchange lists of documents, inspection of
documents and when bundle of documents will be served. Also agree if the
arbitration will only be on documents or also whether witnesses will be called.
(j) Hearing date: agree how much time will each party will require at the hearing
(k) Witnesses: how many will be called, how many are expert witnesses and how
many are witnesses of fact.
(l) Communication with the arbitrator: for transparency, parties must know that
when they communicate with the arbitrator, copies of such communication
should be sent to the other party.
(m) Date when the award shall be rendered: the arbitrator should also be
tied to a date (c.f.) a court.
(n) Taxation of costs: agree with the parties if costs are awarded and the losing
party does not agree the quantum whether the arbitrator or the taxing master
at the High Court will do the taxation.
Jurisdiction of An Arbitrator
In addition to challenging an arbitrator for lack of impartiality or independence, a
party can also challenge an arbitrator for lack of jurisdiction 3. In general, and
arbitrator’s jurisdiction is derived from the consent of the parties. An arbitrator has no
jurisdiction in the following circumstances:
(a) Where an agreement between the parties does not contain an arbitration
clause unless they enter into an ad hoc agreement to arbitrate.
(b) If the arbitration agreement is invalid under the law which the parties have
subjected it to - see s.6(2).
(c) If the arbitrator has not been validly appointed e.g. he dose not meet the
prescribed qualifications.
(d) If the issue in dispute is one that was not contemplated by the parties e.g. if
the arbitration clause relates to a contractual dispute, a tortious dispute
between the parties would not be within the scope of the arbitration clause.
In these circumstances an arbitrator has no jurisdiction.
However, an arbitrator is vested with one statutory jurisdiction i.e. his

competence to decide and rule on his own jurisdiction (conflict with rules of
natural justice?). This is commonly referred to a Kompetenz-Kompetenz. It
arises only if his jurisdiction is challenged. Art. 16(1) of the Model Law (1 st
schedule of the Act) states that an arbitral tribunal may rule on its own jurisdiction
including any objection with respect to the existence or validity of the arbitration
agreement.
The advantage of this doctrine is that it avoids delays and difficulties when a
question is raised as to:-
(a) Whether there is a valid arbitration agreement
(b) Whether the tribunal is properly constituted.
(c) Whether matters have been submitted to arbitration in accordance with the
arbitration agreement.
According to Art 16(2) a plea that the arbitration tribunal does not have jurisdiction
shall be raised not later than the submission of the defence i.e. before the defence is
served. Art 16(3) states that the arbitral tribunal may rule on its own jurisdiction either
as a preliminary question or in an award. A party dissatisfied with the tribunal’s ruling
may request a court to decide the matter and the court’s decision shall not be subject
to appeal.
The Award
Note: there are no dissenting awards in arbitration c.f. you can have dissenting
judgments in litigation. Section 16(1) of the Act states that the award shall be in
writing and shall be signed by the arbitrator(s). In arbitral proceedings with more than
one arbitrator, the signature of the majority of the members shall suffice provided
that the reason for any omitted signature is stated. S. 16(2) states that the award
must state the reasons upon which it is based unless the parties agree otherwise.
The award must also state the date and place of the arbitration at which it shall be
deemed to have been made. After the award is made, a copy signed by the
arbitrator(s) is delivered to the parties [In practice, the arbitrator has a lien over the
award for his fees.] On request by any party, (within 30 days?) an award may be
3
Jurisdiction - authority; Power - ability to act derived from your authority or jurisdiction.
corrected or interpreted by the arbitrator. The arbitrator can also correct the errors at
his own instance or initiative. See Art 33. The interpretation forms part of the award.
Types of Award
An award may be:
Interim: this award is a determination of an issue during the course of arbitral
proceedings e.g. (a) an interim injunction; (b) an order for the deposit of the fees,
costs and expenses of the arbitration, (c) and interim measure for protection in
respect of the subject matter of the dispute. (See s. 14 of the Act).
Partial: like an interim award, a partial award is a determination of an issue during
the course of the arbitral proceedings which may result in the parties saving time and
money. E.g. (a) determination of the arbitral tribunal’s jurisdiction; (b) determination
of part of the claim that can easily be disposed of during the hearing.
Final: this is an award that completes the mandate of the arbitral tribunal. Once it is
delivered, the tribunal becomes “functus officio” i.e. it ceases to have any further
jurisdiction over the dispute and the relationship existing between the arbitral tribunal
and the parties during the currency of the arbitration comes to an end. There is
however, one exception, i.e. when the arbitral tribunal is requested by the parties (or
one of them) to correct clerical errors in the award OR interpret the award OR make
an additional award.
Recourse against an Award

An award rendered by an arbitrator is final and binding on the parties as provided by
s.20(1) of the Act. The only recourse is to set it aside pursuant to s.17(2) of the Act.
This gives instances when an award can be set aside (by applying to a court). I.e. by
[I] The party making the application furnishing proof that:

(a) A party was under some incapacity or the agreement is not valid under the
law the parties subjected it to.
(b) A party was not given proper notice of appointment of the arbitrator or of the
proceedings or was otherwise unable to present his case.
(c) The award goes beyond the scope of the arbitration (but matters which were
submitted to arbitration may be separated out).
(d) The composition of the arbitral tribunal or the procedure was not as agreed by
the parties or as provided by the Act or the law.
(e) The award is not yet binding on the parties or has been set aside or
suspected by a court, or under a law, of the country where it was made.
[II] The court finding that:
(a) The subject matter of the dispute is not capable of settlement by arbitration
under the law of Zambia.
(b) The award is in conflict with public policy.
(c) The making of the award was induced or effected by fraud, corruption or
misrepresentation.
When a court sets an award aside, the court will normally send it back for arbitration
before a different tribunal. [Normally, as in litigation, costs of arbitration “follow the
event” i.e. costs normally go to the successful party. Costs may be taxed.
Recognition and Enforcement of an Award

A court shall recognize an arbitral award as binding regardless of the country in
which it was made see s.18. The party in whose favour the award is made must file it
in court for it to be recognized and enforced. Recognition alone is sufficient if the
loosing party willingly pays the amount awarded to the successful party. If he is
unwilling, the successful party must enforce the award. Recognition and enforcement
of an arbitral agreement may be refused upon the grounds set out in s.19, which are
identical to those above in s. 17 above which a party may use to set aside an award.
How do you make the Application to Set Aside?

See: the Arbitration Court Proceedings Rules of 2001. Done by an originating
summons to a High Court judge in chambers supported by an affidavit stating the
facts relied upon in support of the application and the date of the receipt of the award
and exhibiting:
(a) The original award or a certified copy thereof,
(b) The original arbitration agreement or certified copy.
Recognition and Enforcement of Foreign Arbitral Awards

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention) is in the second schedule of the Act. Art 2 states that each
contracting party (includes Zambia) shall recognize such awards as binding – see Art
3 and 4. Note recognition may be refused on the grounds set out in Art. 5 which are
the same grounds as in s.17 and s.19 above.

LLB 310 Alternative Dispute Resolutions

Uploaded by

Copyright:

Available Formats

LLB 310 Alternative Dispute Resolutions

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

LLB 310 Alternative Dispute Resolutions

Uploaded by

Copyright:

Available Formats

NIPA

ALTERNATIVE DISPUTE RESOLUTION

BY: MAKESA T KALIFUNGWA, BA, LL.B, MBL

WHAT YOU WILL LEARN IN THIS COURSE

The same survey shows that:

As has been earlier indicated

ADR mechanism promotes dialogue and preserves relationship where possible.

3.2 The Purpose of ADR

3. Issues resolved through the alternative dispute resolution methods/techniques end

6.0 TUTOR MARKED ASSIGNMENT

The parties’ settlement

3.3 When mediation will not be an option

Factors to determine whether or not a party’s decision not to mediate is

The nature of the dispute;

Mediation as an ADR method will not be suitable in the following cases:

3 When confidence is eroded as a reason of criminal accusations against an

3.4 Advantages of mediation

5. It is reconciliatory to the parties because it takes away animosity and suspicion

Shortcomings of Mediation Procedure:

The mediation process is enhanced:

When parties understand the issues in dispute and maintain objectivity at

3.3 TYPES OF ARBITRATION

When there is a proper evaluation of BATNA, the possibility of coming out of a

UNIT 4 NEGOTIATION PROCESS

Unit 2 MECHANISMS FOR THE PRACTICE OF ADR

Alternative Dispute Resolution (ADR)

In Zambia the process of mediation is “court annexed” i.e. it is triggered by a court

Differences Between Arbitration and Mediation

Similarities between Arbitration and Mediation

Advantages of Arbitration over Litigation

Subsection (2) gives exceptions

Characteristics of an Arbitration Agreement

The Arbitration Process

The Role of the Tribunal Chairman

Qualities and Qualifications of Arbitrators

Termination of an Arbitrator’s Mandate

Procedure for Challenging an Arbitrator

The following options are available to a challenged arbitrator.

Agenda of the Preliminary Meeting

However, an arbitrator is vested with one statutory jurisdiction i.e. his

Recourse against an Award

[I] The party making the application furnishing proof that:

Recognition and Enforcement of an Award

How do you make the Application to Set Aside?

Recognition and Enforcement of Foreign Arbitral Awards

You might also like