adminMr Matsikidze answers questions regarding these alternative methods and how they are different from the well-known methods of adjudication by the courts.
The book should be a source for students of all disciplines where alternative dispute resolution is relevant, such as law and social studies. Arbitrators, company administrators and human resources practitioners have a lot to gain from studying its contents.
Alternative Dispute Resolution (ADR) may be defined as a range of procedures that serve as alternative to litigation through the Courts for resolution of disputes. It generally involves the intercession and assistance of a neutral third party. ADR is a system of dispute resolution which avoids the need for public proceedings in a court of law. It places emphasis on informality in dispute resolution.
ADR can be used even when parties are litigating. In other words, whilst at the same time legal proceedings are on-going, parties can still be engaged in mediation and conciliation talks. ADR is vital in modern commercial and labour worlds. In the wake of globalisation, it is inevitable that ADR would be used extensively.
The basis for such is because business people are reluctant to be bound by foreign laws, but instead prefer to be bound by agreed terms between themselves as parties. This brings certainty and some assurance to the parties that there are no hidden catch legislative provisions outside the agreement between the parties. Business people do not want to lose time litigating in courts as such is expensive.
The history and development of ADR in Zimbabwe largely depicts that of dispute settlement in the whole body of labour and commercial law development.
In Zimbabwe pre-colonial settlements, the disputes were resolved through four major methods namely wars, chiefs’ courts, family platforms and religion.
Wars were used to resolve boundary disputes and even resources disputes. However, the problem with this method is that the stronger would dominate the weak. More so, it is an expensive method that can cost lives. The chiefs’ courts were a quasi litigation institution with executive and final powers on dispute resolution occurring within their jurisdiction.
The chiefs’ courts offered room for informal dispute resolution in that sometimes no penalty would be prescribed.
The family was largely an informal dispute settlement platform. Religion was vital in the resolution of kingship and succession disputes. The colonial era was marked by a number of legislation introduced to regulate the industrial relations. The Masters and Servants legislation had civil and criminal remedies for breach of employment relationship.
In the 1930s, there were a number of changes which brought the enactment of the Industrial Conciliation Act and its various amendments. The Act brought some exclusive resolution mechanism on labour matters. Post independence notable legislation is the Labour Act and its amendments and regulations. The Labour Act has various dispute resolution mechanisms and these include negotiation, collective bargaining, arbitration, mediation and conciliation.
Some of the ADR mechanisms are being used as feeders into litigation. In terms of Section 93 of the Labour Act (28:01), a matter may be dealt with through conciliation, arbitration and then the Labour Court.
However, a lot of disputes maybe finalised at collective bargaining, conciliation or arbitration levels without recourse to litigation. This marks the development and prominence of ADR in Zimbabwe even though to a large extent, ADR remains blurred by the prominence of litigation and people’s over reliance on the court system as the solution to all legal problems.
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