Examine the principal modes of dispute settlement mechanisms used in different societies. Explain to what extent, in your view, does each mode reflect the particular value system. By Johnson Yesaya. LL.B.

Preliminary

Dispute settlement is an inevitable[1] process for making social life smooth and peaceful. Disputes settlement process tries to settled and check conflicts, which enables individuals to maintain co-operation. It can thus be said that, disputes settlement is necessary for social life and security of social order, without which it may be very difficult for the individuals to carry on the life together. Disputes settlement methods varies depending on the existing national laws, subject matter of the dispute, social values and norms, social perspectives and geographical location. Some tribes for-example, Maasai of Northern zone of Tanzania, they have their own administration bodies and leaders, they have special organs which settle disputes arising in their society without even approaching courts of laws. In Maasai mode of life, the elders were given priority in ruling positions and they were sitting in periodic councils to discuss and pass decisions concerns affairs of their community. Likewise, the elders group had a responsibility in disputes settlement and issuing punishment to the offenders under society by-laws without involving courts of law.

Several other dominant tribes in Tanzania[2] such as Sukuma, Chagga, Nyamwezi, Hadzabe and Iraqw, they have the modes of life where all social disputes may be settled within society without being taken to the court of laws. Due to changes in social life, differences in norms, values and traditions between tribes and interconnectedness of people where people started moving from one place to another, there was a need to establish courts of laws to settle general disputes which were impossible to be settled by using traditional laws due to traditional differences. The establishment of courts of laws came to establish a uniform mode of disputes resolution where people of all tribes now were capable to sue or being sued under same laws regardless of their social differences.  This was a major change and starting point toward establishment of uniform national system of disputes settlement involving court of laws.[3]

Un-fortunately, court of laws are not suitable for all nature of cases/suits depending on several reasons. In contracts for-example, parties do not need to waste a lot time fighting to win a case rather than being paid damages in case of breach of contracts. The adversarial mode of disputes settlement takes a long of time for a suit to come to an end, expensive where parties needs attorneys to handle legal processes, and it do not guarantee relief in some circumstances. Due to all these reasons, Alternative Disputes Resolutions (ADR) were born. ADR doesn‘t refer a single kind of mechanism, but it is a generic name to refer dispute settlement mechanisms other than court and administrative tribunals. Arbitration, Conciliation, Mediation, Negotiation, Early neutral case evaluation and Mini- Trial are some of them which are referred as ADR. Alternative Dispute Resolution is a general term which is used to describe a scope of procedures designed to provide ways to resolving a dispute as an alternative to court litigation. Alternative Disputes Resolution methods had been used by human society since ancient times though it gets wide acceptance and recognition in various jurisdictions recently. ADR methods have various advantages compare to court litigation, have various advantages though it is not free from different dis-advantages.

Types of Alternative Disputes Resolution

There are several types of ADR such as Negotiation, Mediation, Arbitration and Early neutral case evaluation as broadly discussed here below;

Negotiation or re-conciliation.

Negotiation is a consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter.[4] This is when one party in a dispute decides to approach another party so as to settle their dispute amicably without involving a third party. Negotiation is quit different compare to mediation and arbitration, both mediation and arbitration involves a neutral third party who issue non-binding decision in mediation and binding decisions in arbitration. In negotiation no third-party is involved in the entire process of settlement of dispute between disputed parties. When parties fail to settle their dispute by negotiation, they may decide to go for mediation then arbitration, or to bypass the entire ADR processes in some cases.[5]

Mediation.

Mediation is a consensual, confidential and relatively informal negotiation process in which parties to a dispute use the services of a skilled and neutral mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs of both parties. The Mediator is an independent and impartial person in whom the parties to a dispute repose trust, respect and confidence to assist them to negotiate a settlement of that dispute without giving advice, expressing opinions or making decisions for them. Mediation is an ADR method where a neutral and impartial third party, the mediator, facilitates dialogue in a structured multi-stage process to help parties reach a conclusive and mutually satisfactory agreement. A mediator assists the parties in identifying and articulating their own interests, priorities, needs and wishes to each other. Mediation is a “peaceful” dispute resolution tool that is complementary to the existing court system and the practice of arbitration.[6]

Arbitration and mediation both promote the same ideals, such as access to justice, a prompt hearing, fair outcomes and reduced congestion in the courts. Mediation, however, is a voluntary and non-binding process, it is a creative alternative to the court system. Mediation often is successful because it offers parties the rare opportunity to directly express their own interests and anxieties relevant to the dispute. In addition, mediation provides parties with the opportunity to develop a mutually satisfying outcome by creating solutions that are uniquely tailored to meet the needs of the particular parties. A mediator is a neutral and impartial person; mediators do not decide or judge, but instead becomes an active driver during the negotiation between the parties. A mediator uses specialized communication techniques and negotiation techniques to assist the parties in reaching optimal solutions.[7]

Mediation is a structured process with a number of procedural stages in which the mediator assists the parties in resolving their disputes. The mediator and the parties follow a specific set of protocols that require everyone involved to be working together. This process permits the mediator and disputants to focus on the real problems and actual difficulties between the parties. Moreover, the parties are free to express their own interests and needs through an open dialogue in a less adversarial setting than a courtroom. The main aim of mediation is to assist people in dedicating more time and attention to the creation of a voluntary, functional and durable agreement. The parties themselves possess the power to control the process- they reserve the right to determine the parameters of the agreement. In mediation, the parties also reserve the right to stop anytime and refer a dispute to the court system or perhaps arbitration.[8]

In addition to economic and legal skills, mediators are professionals who possess specialized technical training in the resolution of disputes. A mediator plays a dual role during the mediation process- as a facilitator of the parties’ positive relationship, and as an evaluator adept at examining the different aspects of the dispute. After analyzing a dispute, a mediator can help parties to articulate a final agreement and resolve their dispute. The agreement at the end of the mediation process is product of the parties’ discussions and decisions. The aim of mediation is to find a mutually satisfactory agreement that all parties believe is beneficial. Their agreement serves as a landmark and reminds parties of their historical, confrontational period, and ultimately helps them anticipate the potential for future disputes.

Arbitration.

Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.[9]

In Arbitration, an arbitrator(s) is given full powers to control the proceedings of the case, arbitrations are too formal and made up of complex procedures the same as or relevant to court ligation procedures. Parties in arbitration lacks powers to choose mode of decision making or laws to be applied, they remain as good as observers awaiting final decision from an arbitrator. The decision by an arbitrator is final unless it was obtained by fraud or procedural impropriety. Arbitration is confidential, public lacks opportunity to attend arbitral session, only parties and individuals with distinguished interests are allowed to attend arbitration hearings.[10]

Parties in arbitration are allowed to call witnesses, to adduce several documents before court and to do anything considered proper in defending their cases. The procedures of hearing are almost the same as those of court, parties calls witnesses in support of their case and another party do the same. Witnesses from both parties are subject to cross-examination, re-examination etc. Finally, an arbitrator enters his decision which will be binding in nature and parties will be required to follow or to appeal against the entire decision if there is a right to appeal in accordance to the law.

Arbitrators are required to be people with great knowledge on handling disputes (most of them are lawyers but not always), people with integrity and respect in the society, people with good knowledge of the laws etc. Arbitration hearings may be conducted under a sole arbitrator or several arbitrators depending to the choice of parties. There are some arbitration bodies which are entries already made, where there are employed arbitrators who conducts hearing of disputes hence in this circumstance, parties lack powers to choose arbitrators.

Early neutral case evaluation.

This is one of the alternative dispute resolution method where an independent third party evaluates the claims made by each side and issues an opinion –either on the likely outcome or on a particular point of law. This is always a previous method of ADR which is useful in some circumstances, before going to arbitration or court litigation, it is important for both parties to access the risk of approaching those forums. When a matter is in arbitration or court litigation, there is no way to take that matter out of court without causing legal problems i.e res-judicate when a party tries to file again hence it is important to consider disputes before deciding to take them to court of law or arbitration so as to avoid risk that can be settled by ADRs.

Early neutral case evaluation involves a neutral third party as the same as mediation and arbitration, but the difference here is, a neutral third party in early neutral case evaluation has no powers to whatsoever to make binding or non-binding decision. A third party is only given powers to hear facts from both parties then to issue his opinion on the likely outcome when parties will decide to take that matter to other ADRs or court. This method is useful as it can enable parties to settle their dispute earlier especially when they become aware of the risks that they may face before court of laws of adversarial system of decision.

Advantages of Alternative Disputes Resolution

Alternative Disputes Resolution is speedy, it reduces time consuming. Litigations are lengthy, in some cases it may take several years for jury to hear and decide the matter before court of law. Alternative disputes resolution is quick and it gives result in a reasonable time since the proceedings before alternative disputes resolution are not that much formal compare to proceedings before court of law. Alternative disputes resolution gives room to parties to arrange all things concerning their case, they can choose arbitrator or mediator and time limit for hearing, court trial are totally handled by court on its own motion, parties in court ligation have no right to arrange concerning a magistrate who will hear their matter or time frame for the finalization of a case. Before court of law, everything is done by the court, parties only have right to defend their case.[11]

Alternative Disputes Resolution is less expensive, in mediation or arbitration parties are allowed to attend proceedings on their own without representative or paid advocates, this is useful as it reduce costs associated with a case. It is very rare and too difficult for a party to attend court litigation without advocate due to procedural complexity compare to proceedings before alternative disputes resolution. There is no need for advocates in ADRs but they are allowed if parties wants representation by advocates.[12]

Alternative disputes resolution maintains confidentiality, proceedings before ADR are confidential, not every person is allowed to attend tribunal sessions unless there is a need to do so. Litigation is public, anyone can attend court session and to hear what is going on between the parties and this situation interfere confidentiality of the parties and proceedings. For people who prefer confidential of their matters, it is better for them to dispute their matter before ADR and not court which always conducts proceedings in open courts.[13]

Alternative disputes resolution maintain relation, the expectation of ADR is to settle matter amicably, to give all parties a relief or satisfaction and not a matter of lose or win as experienced before court of law. ADR intends to re-conciliate parties in disputes in a way that will not affect their relationship after finalization of a case. In court of laws it is a matter of win all or lose, tension is too much before court of laws and relation of parties may come to an end due to court decision. The courts system may create enemity and prevents parties to work together at future, court system may led to anger and frustrated with either the result or the process itself. In the ADR process the parties could rather learn information that will help them to work more effectively in the future.

Alternative disputes resolution prevents future disputes, parties may adopt strategies used to settle their matter and implement it to their future disputes. The strategies used by a mediator or arbitrator to achieve a resolution between disputed parties may provide framework to deal with other anticipated disputes.

Dis-advantages of Alternative Disputes Resolution

Some disputes contain difficult point of law which may hinder decision invalid. Most of arbitrators and mediators have partial expertise in legal matters and they may fail to give proper decision to the complex dispute. If a dispute is too confusing, and there is possibility that ADR will fail to reach proper decision, parties may choose to skip ADR if it is not mandatory depending on the nature of a dispute. In some cases, it is mandatory for a matter to be tried by ADR before taking it to court, in Tanzania, amendment of first schedule of The Civil Procedure Code, GN No. 381 of 2019 require civil suits be tried for first time in mediation before being taken for full trial before court of law.

Enforcement, it is not easy to enforce arbitral awards made out court of law especially when award was not registered and not recognized by judiciary. Enforcement is an act of implementing decision of the court, decision made by other bodies or tribunals cannot be easily implemented without involving court of law. As a matter of law, ADR awards, particular arbitral awards from domestic and foreign tribunals, for the purpose of its execution, they need to be registered before High Court of Tanzania(section 78(2) and (4) of The Arbitration Act[14]) . A High Court will issue an order with the same effects as what ordered in arbitral awards so as a holder of arbitral awards can a easily execute the judgment through court system.

Ligation or ADR

When disputed parties choose between litigation and ADR, it is not that they consciously need to litigate. Parties are pushed to litigate by their own internal desire to “win the battle.” One of the best examples for the purpose of this question is the case of McDonnell Douglas Corp./General Dynamics v. U.S[15], which involved a default contract termination to produce the Navy’s A-12 attack aircraft. The parties went to litigation and they spent almost three years in preparing for trial. More than $3 billion was at issue in the case. It was estimated that the parties spent $66 million a year in litigation expenses. After many years of trial preparation with both sides reviewing and processing literally thousands of documents and interviewing countless individuals, the U.S. Court of Federal Claims has decided the matter. Having decided in favor of the contractors, the court avoided a full-scale trial on the merits of the contractors’ allegations of constructive changes and breach. Instead, the court required both sides to “share the pain” of the contract termination, by restricting the contractors’ recovery to their incurred costs of performance, but excluding profits and amounts included in the contractors’ requests for equitable adjustment.

The big question: if these parties could start over again, would they have chosen to pursue the ADR route that would have empowered them to arrive at a solution that would be equal to or better than the solution the court provided? The facts relied upon by the court were probably well known by the parties. Facts, of course, are everything in alternative dispute resolution. What kept the parties from utilizing this powerful tool to exploit them?

Putting aside the affect of congressional and high level executive branch interest in the A-12 matter, several general observations are worth noting. Perhaps, cases like these do not settle because of the enormous complexities, the high dollar amounts, the involvement and intertwining of numerous contractor and government-caused cost-generating events, legal and policy questions, and other confounding issues. All these factors, individually and collectively, prevent reaching mutual agreement easily. Complicate this by the fact that each side wants to win and offers little room for compromise. Negotiating parties are not likely to succeed without outside assistance.

Conclusion

My take on this, I think an idea of alternative disputes resolution is very important. This is because, there is a shortage of time for court to entertain all kind of disputes, there are some minor disputes which can be resolved out of court. Depending on a nature of dispute, parties must choose wisely where to take their disputes depending to reliefs and remedies they want. Parties must prior taking matter to arbitration or court, must conduct early neutral case evaluation to forecast the risk associated with their cases when matters are to be taken to Court. As per my knowledge, complex matters are suppose to be decided by court of law and not ADRs.

REFERENCE

BOOKS

Bansal A.K (2005) Arbitration & ADR, Universal Law Publishing Co. Pvt. Ltd, Delhi.

Court of Appeal of Tanzania (2004) the History of Administration of Justice in Tanzania, 1st edition, Mathews books & Stationeries, Dar-es-salaam.

Mark Batson Baril and Donald Dickey, MED-ARB: The Best of  Both Worlds   or Just A Limited ADR Option, 2010

IFC, Alternative Dispute Resolution Manual : Implementing Commercial Mediation, Small and Medium Enterprise Department, The World Bank Group, November 2006

Renate Dendorfer†  and Jeremy Lack, The Interaction Between Arbitration and Mediation: Vision v Reality, vol no 1 2004

STATUTES

 The Arbitration Act, Cap 15 R.E 2020. S. 78(2) and (4)

JOURNALS AND ARTICLE

Bedman, B “From Litigation to ADR: Brown & Root’s Experience”, in Dispute Resolution Journal. Vol. 50 1995

Berman, Gray, S “Facilitated Negotiation: An Effective ADR Technique” in Dispute Resolution Journal Vol. 50 April, 1995

WEB SOURCE

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgiarticle=1883&context=hlr

https://asauk.org.uk/wpcontent/uploads/2013/08/Why-use-ADR.pdf

https://www.academia.edu/1908629/Dispute_Resolution_Confidentiality_Privilege_Secrecy

 On Negotiation (PON), What is Conflict Resolution, and How Does It Work? Available at “https://www.pon.harvard.edu/daily/conflict-resolution/what-is-conflict-resolution-and-how-does-it-work/> ( Accessed December 21 2021)

 Gosheni safaris, “meet Tanzanian tribes and know a lot about them “ available at <https://goshenisafaris.com/tanzania-tribes/> (Accessed December 21 2021)

CLG, “Negotiation, Mediation and Arbitration”, available at <https://clg.ab.ca/programs-services/dial-a-law/negotiation-mediation-and-arbitration/> (Accessed December 21 2021)

 Findlaw, “What Is Mediation And How Does It Work?”, available at <https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html> (Accessed December 21 2021)

Wipo, “what is mediation”, available at <https://www.wipo.int/amc/en/mediation/what-mediation.html> (Accessed December 21 2021).

Wipo, “what is arbitration”, available at <https://www.wipo.int/amc/en/arbitration/what-is-arb.> (Accessed December 21 2021)

The Hindu, “ADR best for speedy disposal of cases”, available at < https://www.thehindu.com/news/cities/Visak> (Accessed December 21 2021)

Ffslaw, “Alternative Dispute Resolution – A More Creative and Less Expensive Alternative to Litigation | FFS Insights> (Accessed December 21 2021).

ADRAC, “confidentility”, available at < https://www.adrac.org.au/confidentiality> (Accessed December 21 2021)

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[1] Program On Negotiation (PON), What is Conflict Resolution, and How Does It Work? Available at “https://www.pon.harvard.edu/daily/conflict-resolution/what-is-conflict-resolution-and-how-does-it-work/> ( Accessed December 21 2021)

[2]Gosheni safaris, “meet Tanzanian tribes and know a lot about them “ available at <https://goshenisafaris.com/tanzania-tribes/> (Accessed December 21 2021)

[3] Ibid

[4]CLG, “Negotiation, Mediation and Arbitration”, available at <https://clg.ab.ca/programs-services/dial-a-law/negotiation-mediation-and-arbitration/> (Accessed December 21 2021)

[5] Ibid

[6] Findlaw, “What Is Mediation And How Does It Work?”, available at <https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html> (Accessed December 21 2021)

[7] Ibid

[8] Wipo, “what is mediation”, available at <https://www.wipo.int/amc/en/mediation/what-mediation.html> (Accessed December 21 2021).

[9] Wipo, “what is arbitration”, available at <https://www.wipo.int/amc/en/arbitration/what-is-arb.> (Accessed December 21 2021)

[10] Ibid

[11] The Hindu, “ADR best for speedy disposal of cases”, available at < https://www.thehindu.com/news/cities/Visak> (Accessed December 21 2021)

[12] Ffslaw, “Alternative Dispute Resolution – A More Creative and Less Expensive Alternative to Litigation | FFS Insights> (Accessed December 21 2021).

[13] ADRAC, “confidentility”, available at < https://www.adrac.org.au/confidentiality> (Accessed December 21 2021)

[14] The Arbitration Act, Cap 15 R.E 2020. S. 78(2) and (4).

[15] McDonnell Douglas Corp./General Dynamics v. U.S., US Fed. Cl., No. 91-1204C,