By CHIPOYA TEDDY|
ABSTRACT
It is undisputed, from a plethora of authorities, books and journals which envisage mediation process as voluntary and consensual. However, court annexed mediation draws a different trajectory for alternative dispute resolution paradigms, from the binding nature of the mediation proceedings to the enforceable nature of a Mediation settlement order. in this paper, a critical analysis is undertaken to asses when and what factors do judges consider before entering a default judgment.
Key words: Default judgment, Mediation, alternative dispute resolution paradigms.
INTRODUCTION
By definition a default judgment is a declaration order or judgement that is pronounced by the court where the defendant in question has not responded or filed in the required document to follow a statement of claim or summons made by the plaintiff. The architecture of mediation process is tailored in a way that gives parties autonomy and control of how the proceedings will be conducted such as selecting the place and date of proceedings (within 40 days from the day of referral) convenient for the parties; the mediator of their choice and most importantly the outcome of the dispute also known as the settlement order. However, there are other procedural rules which are imperative that ought to be observed by parties, for purposes of this discussion failure to attend a mediation proceedings and the failure file a defence either prior the court referring the matter to mediation as well as after the matter has been referred back to court for determination, the court retain the power to enter a judgement in default.(Emphasis is mine).
The Laws Regulating Court Mediation process in Zambia
the Constitution of Zambia Part VIII provides for the judiciary as an organ of the government with exclusive power to hear, determine and preside over disputes and other Conflict of law, Article 118(d) recorgnises alternative dispute resolution as method of resolving disputes. Other laws regulating mediation process include:-
A. High Court Rules (Amendment)B. The Labour and Industrial Court (Arbitration and Mediation)C. The Subordinate Court
Procedure During Mediation
Although mediation process values parties autonomy to choose on how the procedure may be conducted within reach of their preferences, there are imperative action that are regulated by Rules of procedure to ensure parties cooperation.
The mediator soon after collecting record contact parties to the action state time, date and place of the mediation (s.15). A party to mediation shall appear in person and where represented, with their legal practitioner (s. 16). At the commencement of mediation, the mediator shall read out to the parties, and their advocates the statement of understanding which the mediator shall request the parties to sign (s. 17). The mediator shall not keep a record of the mediation (s. 18). Where the mediator prepares any document during proceedings and the mediation fails, the mediator shall destroy such document in the presence of both parties at the end of the mediation (s. 18 (2)). Any statement made during mediation is confidential and privileged and may not be used as evidence in any matter (s. 19). A mediator may not communicate with any trial Judge in relation to any matter which is subject of mediation (s. 20). where mediation ends in a settlement, it shall be registered and sealed by the Court (s. 22 (2)). A mediation settlement sealed and registered by the Court shall have the force and effect of a judgment, order or any decision of the Court or Judge and shall be enforced in the like manner (s. 22 (3)). There shall be no appeal against a mediated settlement (s. 27).as upheld in the case Charles Mambwe v Mulungushi investment and in the caseRaphael Chisupa v African Banking Corporation Zambia Limited APPEAL NO. 111 OF 2019
What Happens When Mediation fail?
A mediation can fail for a lot of reasons some of these include non appearance or attendance by either party or when parties needs are not fully addressed or when parties are not fully engaged or withhold of critical information. However what is of at most importance is the consequences and the procedure that follows therefrom.
Where mediation fails, the Industrial and Labour court (arbitration and mediation) SI NO. 26 guides that; the mediator shall within ten days after the close of mediation proceedings return the record (s. 21). Where the Court or Judge receives a report, the Court or a Judge shall, within fourteen days of such receipt, summon the parties for purposes of fixing the date of hearing for the pending action or application (s. 21 (3)). At this point, the court now can consider whether they can enter a default judgement or not.
Entering a Default judgment
Rule 24 Industrial and Labour Relations Act (Arbitration and Mediation Procedures) Rules, 2002 It provide that: “24. (1) Where a party fails to comply with the order of reference to mediation under these Rules, the court or Judge shall
(a) make a default judgment or an appropriate order against that party if that party is a respondent; or
(b) strike out or dismiss the case where the party is the applicant or complainant.
(2) For the purpose of this rule non -compliance shall include
(a) failure to attend a scheduled mediation hearing; or
(b)Legal representative’s attendance of a mediation hearing without full instructions or authority from the party.
In the case of Barclays Bank plc v Tresford chanda The Supreme Court Observed that, “Rule 24 as a whole applies both to mediation and Arbitration as alternative dispute settlement mechanism. Our understanding of this rule is that, where a Respondent fails to comply with the order of reference to mediation, the court or judge has powers to either enter a default judgment or make an appropriate order as the court or judge deem just against the Respondent.” Therefore Rule 24 provides the primal consideration, the respondent has not sub rule 2(a) failure to attend a scheduled mediation process or legal representation without full authority from the party. However it should be duly noted that non attendance alone can not subdue a default judgment but rather cost against the party made pursuant to Rule 8 of Order 31 of the High court Rules.
The second consideration – whether or not the defendant has entered a defence, in Tresford chanda further stated “Our view is that where the respondent has filed a defence the court has a duty to proceed to trial. That is the only appropriate order the court can make.” This is premised on the well-established rule that all contentious issues must be adjudicated upon by the court. In the case of Bank of Zambia v Nyambe the court stated that 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.” However where the defendant has not entered a defence, then shall the court opt to enter a judgement in default. In the Tresford Chanda case the court held:
“In our view, the court wrongly opted to enter a default judgment when the appellants had filed in a defence. The court ought to have proceeded to trial even if the appellants did not appear before the court.”
Where the complainant fails to comply with the order of reference to mediation the same Rule 24 (1)(b) provides that the court or judge has powers to either strike out or dismiss the case. Again, the court has, in such cases, power to weigh the facts before it to either dismiss or strike out.
CONCLUSION
Although mediation process is party autonomous in nature, it can lead serious consequences for a non complying party, e.g. leading to a default judgment to remedy the plaintiff where a defendant fails to Comply and dismissal of the case where the plaintiff does comply with procedure rules as provided under rule 24 of SI NO 26 of 2002.
ABOUT AUTHOR
TEDDY CHIPOYA IS A THIRD YEAR LAW STUDENT AT THE COPPERBELT UNIVERSITY AND SERVES AS JUDICIARY JUSTICE AND CLERK FOR THE COPPERBELT UNIVERSITY LAW ASSOCIATION JUDICIARY. EDITOR IN CHIEF OF AMULUFEBLOG AND HEAD DEPUTY OF THE INTERNATIONAL LAW DIPLOMACY SOCIETY HUB. HE WRITES THIS ARTICLE IN HIS PERSONAL CAPACITY
BIBLIOGRAPHY
STATUTE
CONSTITUTION CHAPTER 1 OF THE LAWS OF ZAMBIA
HIGH COURT (AMENDMENT) RULES SI NO 72 OF 2018
THE SUBORDINATE COURT RUEL SI NO. 73 OF 2018
THE LABOUR AND INDUSTRIAL COURT (Arbitration and Mediation) SI NO 26 OF 2002
CASES
Barclays Bank plc v Tresford Chanda APPEAL NO. 64/ SELECTED JUDGEMENT 05/09/07
Bank of Zambia v Nyambe and Others SCZ NO. 30/2006 APPEAL NO. 190/2005
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
OTHER SOURCES
Default judgment | Wex | US Law | LII / Legal Information Institute” https://www.law.cornell.edu/wex/default_judgment
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.
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.