Arbitration, Mediation and Conciliation as Options for Trouble-Shooting Commercial Disputes during COVID-19

Share on facebook
Share on twitter
Share on linkedin
Share on facebook
Share on whatsapp
Share on email

Without a doubt, Courts of law are at the centre of the justice system anywhere in the world, and it is in the Courts of law were disputes between two opposing parties are resolved by way of Court’s intervention in the event that parties are unable, due to various factors, to resolve their differences amicably.  The justice system has rules and procedures that litigants have to follow and comply with as they take their matter to court. In most cases these procedures are lengthy and compliance takes quite a bit of time before a case is finally heard and determined by a dealing Judge, coupled with heavy backlogs that the courts have to deal with. We shall not even go to the issue of costs involved in successfully prosecuting a matter before the courts of law.

With the outbreak of the Covid-19 pandemic, and the promulgation of the Public Health (Notifiable Infectious Disease) (Declaration) Notice 2020, Statutory Instrument No. 21 of 2020 (“S.I. No. 21 of 2020”), and announcement of health measures in an attempt to reduce the spread of the coronavirus, requiring all citizens to maintain social distancing, Courts have not been spared, as they have also been compelled to go on temporary recess, until further notice.

For instance, under regulation 9of S.I. No. 21 of 2020, a gathering of five or more people in an infected area shall not be held without the approval of the local authority or medical officer of health so as to stop the spread of Covid-19. For purposes of these regulations, Lusaka district, Kafue district and Copperbelt provinces where cases of Covid-19 have been recorded are now considered infected areas, and therefore subject of a localised lockdown.  

Therefore, the adage ‘justice delayed is justice denied’, even on account of Covid-19, cannot be over emphasized especially in the

Circumstances of Covid-19, which has affected almost every part of human interaction.

The search for alternative means of resolving disputes therefore becomes even more fervent in light of the restrictions of accessing the courts of law on account of Covid -19 and the anticipated backlog the pandemic may contribute to the already existing challenges faced by the courts.

It is therefore, imperative that parties to potential and actual disputes and even for those already before courts of law try as much as possible to resolve their matters urgently using the available alternation dispute resolution mechanisms, without the need to wait for the Court to hear and determine these matters. Of key importance is, commercial transaction disputes. These need to be resolved urgently to allow businessmen and women, and their counterparts continue operating and keep their businesses afloat amidst the COVID-19 pandemic, as waiting for the Courts to resolve their matters through the process of litigation may result in huge business losses.

So what are the alternative dispute resolution mechanisms to litigation?

 Alternative Disputes Resolution (ADR)

The available alternation dispute resolution mechanisms (ADRs) include Arbitration, Mediation and Conciliation. Let’s shed light on these three types but of course other novel ways of resolving complex issues between parties swiftly also exist.

Arbitration

Arbitration is a consensual and confidential process, in which parties to the dispute select a neutral and independent third party to assist them in reaching a legally binding decision. The legally binding decision is enforceable like a court judgment once registered with the courts of law.

Mediation

Mediation is a voluntary process in which a trained and impartial third person, the mediator, helps the parties in dispute to reach an amicable settlement that is responsive to their needs and acceptable to all parties involved.

The mediator brings the parties together face-to-face in a private and confidential setting and each party has an opportunity of putting forward their point of view and listening to what the other has to say of which the mediator does not impose a decision on the parties. Thus more importantly, the ultimate decision is reached with the full blessings of the parties themselves. This also helps the parties to maintain their business relationships as there is no winner or loser, it is a win-win situation, unlike in a court where an adversarial system is adopted and there is always a winner and a loser, with a longer process of appeal for the dissatisfied parties. This is not so with mediation. 

Conciliation

Conciliation is an advisory, consensual and confidential process, in which parties to the dispute select a neutral and independent third party to assist them in reaching a mutually acceptable negotiated agreement.

Conclusion

During Alternative Dispute Resolution, parties make their own decisions and reach agreements with which parties may be more willing and ready to comply. ADR settlements are flexible and in more practical ways go

beyond the legal remedies the court may award as well as help heal wounds and maintain a continuing relationship of opposing parties.

COVID-19 has compounded the challenges of resolving disputes through litigation in the courts of law. Therefore, Alternative Dispute Resolution Mechanisms present options that can be used for resolving disputes, troubleshooting, during the COVID-19 pandemic.  Whether and what particular ADR option is available and appropriate for any particular dispute is for your legal practitioner to advise.

Client Legal Alert – Equitas Legal Practitioners@2020

*This scholarly article is a general guide and does not contain definitive legal advice. Readers considering taking action on any of the issues discussed should speak to their legal advisors before taking any such action. Equitas disclaims any liability whatsoever arising from acting on this article.

Leave a Replay

About Us

Equitas Legal Practitioners (“The Firm” or “Equitas”) is a Zambian registered law firm providing Corporate legal services. Equitas is founded on a strong belief that professional and efficient legal service is excellent for your business. It is regulated by the Law Association of Zambia, registered under the Registration of Business Names Act No. 16 of 2011 and other relevant regulatory agencies.

Recent Posts

Close Menu