Alternative dispute resolution and its place in the Zambian judicial system
Date
2013-10-14
Authors
Young, Amelia Pio
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Abstract
Over the past several decades, there had been a growing interest amongst advocates world-wide, in the use of alternative dispute resolution (ADR) techniques to resolve their clients' disputes more economically and efficiently. In the face of bottlenecks and backlogs in the court systems, as well as spiralling costs and fees, courts and members of the legal fraternity have been part of the movement seeking means other than litigation for resolving disputes.The development of more flexible means of resolving disputes in the form of ADR techniques has therefore gained increasing popularity, and the Zambian legal system is no exception. Certainly, the advantages to be gained by the implementation of ADR in the Zambian legal system provide enormous potential and as such, ADR has not gone unnoticed in Zambia.In the past year alone, tremendous reforms have been made in the Zambian legal system, and a study on ADR is therefore most timely in this context.This paper seeks to introduce to the reader, the concept of ADR and its implications in the Zambian context. In our first chapter, gives a brief overview of the problems faced by the court systems today and the need for alternatives to traditional litigation, not only because of congestion in the court systems or because of the need to save time and money, but more importantly, because of the many advantages that ADR processes bring to the disputants. We also provide a basic introduction to ADR, giving a bird's eye view of the various processes and techniques in the resolution of disputes, and highlighting the importance of ADR processes to any judicial system.We trace the history of ADR in general, and the historical development of ADR in Zambia in our second Chapter, giving an account of the genesis of the ADR movement and the current importance and status of ADR mechanisms. The importance and relevance of the historical background to this study is that it gives the reader who is new to ADR an
idea of the speed and impetus with which the ADR movement has grown in recent times. This is an important aspect in that it creates a setting in which ADR has become an important and topical subject, of particular interest not only to lawyers in Zambia today, but more importantly, to the law students - the future generations of lawyers who will undoubtedly come across these processes in the not-too-distant future, and will require some idea as to how ADR developed as an important part of any judicial process.Our third Chapter gives a philosophical analysis of the various underlying factors that need to be considered in examining ADR processes. It highlights the basic underlying conceptual ideologies behind each process, and relates these concepts to the manner in which the lawyer and the client relate within the ADR environment. This is an important Chapter in that it creates a philosophical backdrop that conduces to the understanding of ADR processes and lays the foundation for the practical application of these processes. Further, it elucidates the broad approaches to ADR processes, pointing out how the basic underlying concepts impact upon the various players in the ADR system.Chapter four goes into the specifics of ADR Processes. It discusses the Primary ADR Processes and their practical application, as well as the Hybrid Processes. The major ADR processes, namely, arbitration, mediation and negotiation, are compared with traditional litigation, and described along with their advantages and disadvantages. An important section in this chapter relates to the current status of ADR processes in Zambia, detailing the major developments in recent years. The law stated is as at May 2000.Our fifth and final Chapter draws on previous chapters to highlight the importance and the necessity for ADR in Zambia, in order to make recommendations in terms of the institutional and legal framework for the implementation of ADR in Zambia
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Keywords
Dispute resolution