By CHIPOYA TEDDY
INTRODUCTION
Etymologically, Mediation derives from the late 14th-century Latin mediationem (a dividing in the middle, intervention). It originates from the Latin mediare (“to be in the middle,” “halve”) and medius (“middle”), rooted in the Proto-Indo-European medhyo- (“middle”). It signifies acting as an intermediary to reconcile. According to the industrial Relations Court (Arbitration and mediation rules of 2002 describes, ”mediation as the process by which a neutral third party called mediator assist parties to a dispute reach a voluntary settlement of their differences through a binding and enforceable agreement.” Further, kovach describes mediation as a non-binding dispute resolution procedure in which a neutral third party a mediator facilitates negotiation between the parties to help the settle. Goodman defined mediation as a “voluntary, non binding and a private dispute resolution process in which a trained neutral person helps the parties try to reach a negotiated settlement.”
Background Review
Generally, the definition delivered by Kovach and Goodman entails that mediation is voluntary and non binding, this type of mediation is therefore said to be Voluntary Mediation, implying that parties can elect to settle dispute or not through mediation and can not be bound by it hence can revoke it at any time. While the industrial Relations Court (Arbitration and mediation rules is binding, which aligns with Court Annexed Mediation, the recent development in administration of justice through ADR processes the courts may impose sanctions on the parties that reject or refuse to attend the mediation process. Rule 8 of the High Court Rules of Order XXXI states that sub rule (1) parties shall attend mediation ether in person or with legal representation.” Sub-rule (3) provides that “The court shall where a party has received a notice of mediation in Accordance with rule 7 fails to attend without reasonable cause, make an order as to cost from the date of the referral of the proceedings to mediation in favour of the party in attendance, despite the defaulting party being successful in the action.” The critical question for this discussion, what is the finality of mediation settlement order for both Private (voluntary) mediation and Court Annexed Mediation.
WHEN CAN PARTIES ENTER A SETTLEMENT ORDER.
In mediation training, mediators are often advised that they should assist the parties to reach a settlement, but they should not draft the Settlement Agreement. In practice, many mediators who have been present with each party will have gained their trust and is very well placed to assist in both ensuring that all the terms that had been discussed with the mediator are reflected in the Agreement, The High Court Rules, Order XXXI rule 16 (3)(4) and (5) “states that where a party at any stage make a proposal with a view of reaching Settlement should be in writing and communicated to the mediator and to all other parties in sufficient details for them to understand the proposal. Where it appears to the mediator that there is a possibility of the settlement acceptable to the parties, the mediator may, with the prior consent of the parties formulate the terms of the settlement in writing, as a proposal for consideration by the parties.” However, it is for the parties to draft the Agreement. When a claim has been made, parties can agree a settlement with the other party; Before the trial date, or on the day of the trial.
1.1 VOLUNTARY MEDIATION SETTLEMENT ORDER AND ITS FINALITY
Prior legal proceedings in a court, legal advocates are under obligation to advise clients to consider mediation as a possible way to resolve the dispute using an independent mediator. rule 39 Of the Legal Practitioners Rules , places an obligation on a lawyer To “encourage clients to reach a solution By settlement outside court rather than Start legal proceedings.” solicitor will explain the benefits of mediation and if it is suitable for your dispute. They must also provide details of possible mediators. Article 5.2 of the UNCITRAL states that “if a party that invited another party to mediate does not receive an acceptance of the invitation within 30 days from the day on which the invitation was sent, or within such other period of time as specified in the invitation, the party may elect to treat this as a rejection of the invitation to meditate.” however parties are entitled to revoke proceedings Article 14 of the UNCITRAL provides for termination of mediation proceeding, at anytime before an agreement is reached
What is effect of the settlement order in a private mediation?
According to the court in Charles Mambwe and Others v. Mulungushi Investment Limited and Another , the “decisions made in private mediation are non-binding on the parties while decision passed during the court annexed mediation are binding. In support of the above, reference was drawn from the Black's Law Dictionary by Bryan A at page 1003. Black's Law Dictionary defines mediation as a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. The definition makes it clear that the process is non-binding on the parties involved”.
However, the terms of the settlement can be made into a court order or filed in court to make it an enforceable settlement agreement, if it reduces it in writing and submitted to the court in Accordance with Industrial Relations Court (Arbitration and Mediation Procedure) Rule22 (1),(2) and( 3) . Further Article 15, Binding and enforceable nature of the settlement agreement, “States that if parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable.”
1.2 COURT REFERRED MEDIATION AND FINALITY OF ITS SETTLEMENT ORDER
Court annexed mediation was defined by the supreme court in the case of Charles Mambwe and Others v. Mulungushi Investment Limited and Another as “… a process by which a trial court refers the parties to a neutral third party called a mediator to help them resolve their dispute.” The purpose of referring the matter to mediation as per rule 16 sub rule (1) of SI no 72 is to assist the parties reach an agreement in good faith on a fair and efficient resolution or partial resolution of their Dispute. The mediation conducted in the High Court and the Industrial Relations Court is court annexed mediation; meaning it is part of the judicial system as quoted in Bank of Zambia vs Richard Nyambe and others . This is to decongest the courts and also ensure that there is speedy dispensation of justice.
The general rule on finality of mediation settlement order is provided for under Industrial Relations Court (Arbitration and Mediation Procedure) Rule22 (I) Where mediation ends in a settlement, the parties and the mediator shall sign the mediation settlement document set out in Form 4 of the First Schedule.
(2) The mediation settlement referred to in sub-rule (I) shall be registered and sealed by the Court. (3) A mediation settlement sealed and registered by the Court shall have the force and effect of a judgment, order or any decision of the Court or Judge and shall be enforced in the like manner.
From the provision excerpted above, a Mediation Settlement order drafted in Accordance with standard and signed shall be signed and sealed, meaning that it has been duly executed and binding on the parties, thereby it shall have the force and effect similarly to a judgement, order or decision of the court. This was upheld by the supreme court in Charles Mambwe case that:
In deliberating the effect of the consent settlement order on the applications that were before the learned high court judge and registrar, that the Learned High Court judge should have taken cognizance of the fact that he had no power to interpret, review or even refer the consent settlement order to the deputy registrar for assessment. Consequent upon this, the deputy registrar ought not to have adjudicated upon the matter. What both must have done was invoke the powers by order 3 rule 2 by granting an order that the justice of the case deserved by referring the matter back to mediation with specific guidance that the mediator, the parties and their counsel should deliberate upon which the court deliberated. The proceedings carried out by the Learned High Court Judge and the Deputy registrar were therefore regarded as a nullity. In addition to this,in light of the effect of that the consent settlement order had as regards the dispute between the parties, the court provided that mediation rules did not provide for referral of matters back to mediation by the court where there was a settlement according to Order 3 rule 2 of the High Court Act 1.They further held that an appropriate mediator should have been identified and used with appropriate accounting qualification. They therefore dismissed the case based on the preceding.
A mediation settlement order is a binding and final order, which means the order that is signed by a mediator and the parties marks the end of the proceedings. Thereof, such an order cannot be subject to appeal, interpretation or review, nor can the proceedings from which it arises be re-opened. This is to decongest the courts and also ensure that there is speedy dispensation of justice. The court in Charles Mambwe case when it held that consent settlement order entered into by the parties in the matter above is final and binding upon the parties in the dispute. This is because when cases are referred to mediation, the court ceases to have jurisdiction over the matter.
When can the court assume jurisdiction over a Mediation Settlement order?
The court can only assume jurisdiction where mediation fails pursuant to Order 31 rule 11 of the High Court Rules which states that: (1) if mediation fails the mediator shall not more than ten days after the close of the mediation proceedings, return the record to the mediation office or proper officer with a report in form 28C in the First Schedule to these rules, stating that the mediation has failed. (2) The mediation officer or proper officer shall, not more than seven days after receipt of the report referred to in sub rule (I), submit the record to the trial judge who, shall not more than fourteen days after receipt of the record from the mediation officer or proper officer summon the parties in terms of rule 5. This is the only situation under which a records can be referred back to a trial judge from mediation. Herein the court where on firm grounds to hold that:
“A record cannot, under any circumstances, be referred back to the trial judge where the Dispute is settled in mediation and a settlement order filed with the court in the prescribed for.”
TEDDY CHIPOYA IS A THIRD YEAR LAW STUDENT AT THE COPPERBELT UNIVERSITY. SERVES AS JUDICIARY JUSTICE AND CLERK FOR THE COPPERBELT UNIVERSITY LAW ASSOCIATION DISCIPLINARY COMMITTEE.
STATUTE
High Court Rules as Amended of 2018 Statutory Instrument No. 72
Industrial Relations Court (Arbitration and mediation rules of 2002 statutory instrument no. 26
Legal Practitioners Practice Rules 2002, Statutory Instrument No. 5 of 2002
UNCITRAL INTERNATIONAL SETTLEMENT AGREEMENT RESULTING FROM MEDIATION WITH GUID ENACTMENT AND USE (2018)
CASES
Bank of Zambia vs Richard Nyambe and others SCZ No. 30 of 2006
Charles Mambwe and Others v. Mulungushi Investment Limited and Another Appeal No. 27 of 2014) [2016] ZMSC 203
BOOKS
Goodman A. 2010. Mediation Advocacy, n edn Xpl, publishing, unite
JOURNALS
Kimberlee K Kovach, Mediation Principles and Practice (1996)
WEBSITE
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