Chronicle EditorDavies Ndumiso Sibanda
MANY employers and employees hate the Alternative Dispute Resolution methods (ADR) due to the fact that ADR was poorly introduced into Zimbabwe’s Labour Dispute Resolution.
Otherwise all things being equal, ADR is generally better for both employers and employees than litigation.
In many countries, labour disputes are now largely handled through ADR. A good example is the South African case where the gateway to labour litigation is to a large extent through ADR at CCMA.
ADR has various tools such as conciliation, mediation and arbitration and of late in the developed world we have started seeing Online Dispute Resolution (ODR) tools being used successfully and there is no doubt that at some point Zimbabwe will have to buy into these methods.
While it is common knowledge that the Employers’ Confederation of Zimbabwe (EMCOZ), the major voice for employers has openly voiced its dislike for arbitration, I believe their concerns are justified given the way we currently handle arbitration.
However, I would not agree with the thinking that it should be done away with completely. I believe it should be sanitised so as to meet world class standards of ADR.
Why ADR has not been very successful in Zimbabwe particularly arbitration is because Zimbabwe did not invest in capacity building.
And even those with the capacity such as those with the University of Zimbabwe diploma in alternative dispute resolution were left out with government preferring to register anybody with a social science degree even if they were not competent in ADR.
This is evidenced by the number of arbitration awards and rulings that are overturned by the higher courts where arbitrators completely missed the points of law and other critical issues that could have secured an agreement.
ADR is not an alternative to go into court, but it is a means of encouraging parties to resolve their differences outside the court system.
ADR is guided by the principle that litigation should be an exception rather than a norm.
In the last 15 years, we have seen the rise in the use of ADR in labour dispute resolution for reasons such as avoiding excessive costs leading to litigation, delays in concluding cases before the courts and avoiding complexities related to litigation which could prove difficult to handle for self-actors.
Further, there are some cases which cannot be resolved through litigation where there is a winner and a loser but require ADR where the parties are helped to find a solution that leaves them happy and able to continue working together into the future.
Some disputes by their nature cannot be solved by submissions made by a judge and a judgement as they could be many underlying issues that are not capable of being resolved through a judgement, but can be dealt to finality through ADR. There are also issues of confidentiality.
Unlike in a public court where all matters are brought to a public domain, ADR can provide private and confidential final settlement of dispute.
In conclusion, employers and workers should weigh their options when dealing with disputes and pick on a route that will add value to the labour relations and the business.
derick.khumalo