By CHIPOYA TEDDY
ABSTRACT
Mediation is an alternative dispute resolution process, where parties voluntary agree to settle their dispute with the assistance of a third party. the objective of this process is for the parties to reach a voluntary settlement order. In this papers, we shall examine the nature of a settlement order and Critically discuss it’s finally and binding effect, with the support of relevant case law and legislation.
Key words: Mediation settlement, Finality, binding effect
INTRODUCTION
A mediation settlement order is defined as a final, legally binding document signed by parties after a successful mediation, acting as a contract that settles disputes without further court litigation. In Zambia, the format in which the settlement order should be drafted is provided for in the Industrial Relations Court (Arbitration and Mediation Procedure) Rule22 which provides that (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.
Order XXXI rule 12 of the High Court Rules provides that where an agreement is reached, the mediator will return the record and it will be registered and will have the same effect as a judgement order. Unlike common law position that alternative dispute resolution (ADR) are non binding, mediation is binding if there is an agreement (Order XXXI. 14). Hence there is no appeal against mediation settlement.
Therefrom, where a mediation process is concluded by the parties regardless of whether it is a ad hoc/ private mediation or Court Annexed mediation. The parties, with the assistance of the mediator aught to reduce the settlement into writing and signed for by both parties for it to be final and cannot be repealed or interpreted by the judge. It shall therefore be said to have the effect of a Court decision or judgement.(Emphasis is mine)
LEGISLATIVE REFORMS
a. High Court Rules and the Industrial Relations Court Rules
Order 31 rule 4 of the High Court Act provides that:” every action, upon being set down for trial, be referred by the trial judge for mediation and where the mediation fails the trial judge shall summon the parties to fix a hearing date. ” Therefore, the court can only assume jurisdiction where the mediation process failed. Ultimately, where a mediation is concluded with the settlement order, the trial proceedings are revoked and the process is hence forth finalized.(Emphasis is mine)
Mediation under the Industrial Relations Court is provided for under Statutory Instrument no. 26 of Industrial Relations (Arbitration and Mediation) Rules 2002 . Section 22 provides that “(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.”
b. Subordinate Court
Court Annexed mediation has been introduced in the subordinate courts of Zambia by Article 118 of the Constitution of Zambia and Statutory Instrument No. 73 of 2018. The court has jurisdiction to refer settlement of issues for mediation as it considers appropriate whether on its own motion or at the request of the parties, once it determines that the issues can be mediated, according to Rule 18 of Order 43 of the Subordinate Court Rules. Where a settlement is reached, a mediator shall return a record of proceedings within five days of the conclusion of the proceedings to the mediation officer and shall inform the parties thereto (Order XXVIII. 19).
JUDICIAL PRECEDENT
- Charles Mambwe and Others v Mulungushi Investment Ltd (In Liquidation) and Mpelembe Properties Ltd, it was held 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.
- PICLA WOMEN EMPOWERMENT LIMITED V PALKA MUBIKAYA, This is a composite ruling on the plaintiffs application for an order to commit the defendant, to prison for contempt of Court for failing to meet the requirements of the settlement order. In trying to determine whether settlement order is a judgement. It was stated in casu, “According to Order 31 rule 12 of the High Court Rules, Chapter 27 of the Laws of Zambia, a mediation settlement, once it is signed by the parties, the mediator and registered under Order 37 rule 7 of the rules, has the same force and effect as a judgment, order or decision and can be enforced in the like Manner.”
- Bank of Zambia v Richard Nyambe, Jackson Madimusa and others, it was held that Where, for whatever reasons, Mediation fails, the case should be referred back to the Judge who shall summon the parties to fix a hearing date, as these provisions are in line with the philosophy of Mediation, namely to give parties an opportunity to resolve their dispute with the assistance of a Mediator, but at same time retaining the parties right to have their case heard and determined by the Court. It was further held that invoking rule 24(1)(a) is against in conflict with the philosophy of Court Annexed Mediation as we understand it.
- Barclays bank Zambia plc v Tresford Chanda , it was held, “that the court wrongly invoked rule 24 (1)(b) on entering a default judgement when the appellants failed to appear in when a matter was referred to mediation, instead the court should have proceeded to trial since the appellants submitted their defense. It is only when the respondents (who in this case the appellants) have not entered a defence then can the court enter a default judgement.” This case highlights the binding nature of mediation procedure and effects on non appearance.
- Raphael Chisupa v African Banking Corporation Zambia Limited, it was held that Indeed it should be realized that a Consent Judgment or Order has the same force and effect as the Judgment or Order of the court as it is made in the name of the Court. The judge further stated that view that the Learned Judge should not have nullified the consent order at her own volition. There was no challenge to the Consent Order. In our view, there was no need by the learned Judge to tamper with the Consent Order in the manner she did.
Conclusion
With a plethora of authorities excerpted above, a mediation settlement sealed and registered by the Court shall have force and effect of a Judgment Order or Any decision of the court or Judge and shall be enforced In. the like manner. Further from the case of Bank of Zambia v Nyambe and others, a default judgement was held to be in conflict with the spirit of annexed mediation that is parties autonomy and control. The case of Barclays bank Zambia plc v Tresford Chanda gave a clear stance on when the court or Judge can deliver a judgement in default invoking rule 24 of the Industrial Relations (Arbitration and Mediation) Rules 2002 that is where the defendant or parties affect have entered their defence, the mediation will said to fail when parties fail to attend the mediation process however damages will be imposed on that party. Where the defence had not been entered then the court can deliver a judgement in default.
ABOUT AUTHOR
CHIPOYA TEDDY is a Third year law student of the Copperbelt University and judiciary clerk of Copperbelt University Law Association Disciplinary committee. He writes this article in his personal capacity.
BIBLIOGRAPHY
STATUTE
Constitution of Zambia No. 73 of 2018, of the Laws of Zambia
The High Court Act Cap 27 of the Laws of Zambia
The High Court (Amendment) Rules, No.73 of 2018
The Industrial Relations Court Act (Arbitration and Mediation) Rules No. 26 of 2002
The Subordinate Court (Amendment) Rules No. 73 of 2018
CASES
PICLA WOMEN EMPOWERMENT LIMITED V PALKA MUBIKAYA26 December (2025) 2022/HN/256
Bank of Zambia v Richard Nyambe, Jackson Madimusa and others, APPEAL NO. 190/2005
Barclays bank Zambia plc v Tresford Chanda APPEAL NO. 64/2005
CHARLES MAMBWE ABD OTHERS Vs. MULUNGUSHI INVESTMENT LIMITED AND MPELEMBE PROPERTIES LIMITED [ 2016] SELECTED JUDGEMENT NO. 36 SCZ /8/301/2013 p. 1318
Raphael Chisupa v African Banking Corporation Zambia Limited APPEAL NO. 111 OF 2019
WEBSITE
“What Is a Mediated Settlement Agreement? | Foust” https://foustiplaw.com/glossary/mediated-settlement-agreement/
DISCLAIMER
The views expressed in this article are solely mine and do
not represent any organisation with which I am affiliated.
The views and opinions presented in this article or multimedia content are solely those of the author(s) and may not represent the opinions or stance of Amulufeblog.com.