MZUMBE UNIVERSITY
FACULTY OF LAW
COURSE
: LLB III
REG
: 1236009/T.20
NAME
: YUSUPH H KISWAGA
NATURE OF WORK
: ASSIGNMENT
SUBJECT
: ALTENATIVE DISPUTES RESOLUTION
SUBJECT CODE
: LAW 323
LECTURER
: MR; MNZAVA
QUESTION
Alternative Dispute Resolution is a new wine in an old bottle. Discus
TABLE OF CONTENTS
1.0.
Introduction
1.1.
Demand and the coverage of the question
1.2.
The concept of Alternative disputes Resolution
2.0.
Discussion on the issue of Alternative dispute resolution as to whether is the
new wine in an old bottle or not.
2.1.0.
Comparison between Normal Civil Litigation and alternative Disputes Resolution.
2.1.1.
The question of Privacy and Confidentiality.
2.1.2.
The question of Cost in term of time and money.
2.1.3.
The issue of relationship between the parties in disputes.
2.1.4.
The issue of satisfaction of both sides.
2.2.0.
Comparison between Traditional Dispute settlements and alternative
Disputes Resolution.
2.2.1.
The issue of Coerciveness.
3.0.
CONCLUTION
4.0
REFERENCES
1.1. Demand and the coverage of the question
The question requires discussing the given statement as to whether the current mode of disputes
settlements that is alternative disputes resolution as to whether is the new wine in an old bottle.
The statement simply implies that, the current modes of disputes resolution have the same
problem as the oldest methods of solving disputes. This paper covers mainly three parts in
answer the question; one is the introduction part which comprises of demand and coverage of the
question, the concept of alternative disputes resolution and its meaning. The second part cover
the main discussion of the question as it answer the questions, it contains the points likes The
question of Privacy and Confidentiality, The question of Cost in term of time and money, The
issue of relationship between the parties in disputes, The issue of satisfaction of both sides,
Power and legal effects of the Boards and Neutrality of the Mediator. And the third part is that of
conclusion which comprises of summary of the work.
1.2. The concept of Alternative disputes Resolution
The increasing importance of arbitration and dispute resolution in the African context is a
reflection of the global growth in international and development, a trend that is likely to continue
into the 21st Century1.There are several methods available for resolving disputes between two
parties, first and most important method is through the courts, parties can get the said dispute
resolved through the courts established by law in their respective country2. Generally, this has
been the most common method employed by the citizens of a country for the resolution of their
disputes with the fellow citizens3.
1
C, Mashamba; Alternative dispute resolution (ADR) in Tanzania law and practice, Dar Es Saaam : Mkuki na
Nyota Publishers Ltd, 2013
2
Ibid
3
Vinod K. Agarwal; Alternative Dispute Resolution Methods, United Nations Institute for Training and Research
(UNITAR) 2001 www.unitar.org/dfm
Alternative disputes Resolution a process by which the disputants to reach a mutually agreed
solution, it covers a vast range of approaches, from engagement in negotiations as the most and
best appreciable way to reach accepted resolution agreed by both, to Arbitration where by an
external party imposes a solution. Somewhere along the axis of alternative disputes settlements
approaches between these two extremes lies mediation4. Biron J, contends that,
“To solve the problem British Colonial Regime in Tanganyika established resolution
of dispute by way of arbitration by the enactment of the Arbitration Ordinance which
is an offspring of Alternative Dispute Resolution as it encourages people to refer
their disputes to arbitration rather than to litigation”5.
Several complaints lodged against lawyers and the legal process has gained an amplified
resonance in the cotemporary world community. The common conception is that judges and
lawyers, the procedural rigor of justice and substantive challenges of legality, lay Jury and
technical experts hurt more than they help. The recourse to legal actors and proceedings is cost ,
emotionally debilitating, and potentially counterproductive .It is to meant that now it is a
common knowledge that existing justice system is not able to cope up with the ever increasing
burden of civil and criminal litigation6.
In Tanzania Alternative Dispute Resolution introduced in 1994 through Government Notice No.
422, which amended the First Schedule to the Civil Procedure Code Act (1966) as a result of the
Mroso Committee’s recommendation. However it did not recommend the incorporation of
Alternative Dispute Resolution in civil justice system. But it was so in order to give Alternative
4
Shamir, Y; Alternative Dispute Resolution Approaches and the Application, Unesco, 2003, p. 2.
John Magendo v Govanni [1973] LRT at Pg 60
6
United Nations Institute for Training and Research (UNITAR); Alternative dispute resolution, Geneva,
2001www.unitar.org/dfm,
5
Dispute Resolution some sort of legal authenticity and hence it was incorporated in the Civil
Procedure Code [Cap 33 R.E 2022]7.
1.0.
Discussion on the issue of Alternative dispute resolution as to whether is the new
wine in an old bottle or not.
This part which carries the main discussion of the question, it answer the question above, the
determination of the value of the method of dispute settlements mechanism is determined by
compare disputes settlement mechanism with the Court modes of settlements disputes and
Traditional methods of disputes resolution as follows here under;
1.1.0. Comparison between Normal Civil Litigation and alternative Disputes Resolution.
1.1.1. The question of Privacy and Confidentiality.
The role of the impartial third party in the alternative disputes resolution process is to achieve
lasting settlement than enforcing society norms, they are not expected to have a shared value
system or agreement on normative standards, and such third party not able to or expected to
operate in terms of a shared moral system8. Mediators tend to represent the norms and values of
their communities and usually advocate a settlement that accords with commonly accepted
notions of justice, couched in terms of custom, virtue and fairness, and reflecting community
judgments about appropriate behavior9. It was Contended that by Shamir Y,
Mediation is confidential, off the record, and away from the public eye and the press.
The mediator is bound not to divulge any of the information he/she hears from one
party to the other or to anyone else without permission, so the parties can feel free to
7
Tefera E and Mulugeta G ;Alternative Dispute Resolution Teaching Material ,Sponsored by the Justice and Legal
System Research Institute .2009
8
Ibid
9
Vinod K. Agarwal; Alternative Dispute Resolution Methods, United Nations Institute for Training and Research
(UNITAR) 2001 www.unitar.org/dfm
confide in the mediator. The mediator will not share the confidential information, not
even with a judge. Mediators can meet with each party in separate and private caucus,
to assist them in understanding their own underlying interests and those of the other
party10.
This is quietly different from normal courts litigation, which is endowed with non
confidential as it the documents of the case are always public and can be passed by
different persons up on their wish. The decisions from arbitrations are stored and remain
secretes of the parties to that extent that they cannot even being used in the normal court,
examples matters discussed in mediation.11
1.1.2. The question of Cost in term of time and money.
A further disadvantage in the judicial system is the delay in getting to court which only serves to
exacerbate the mutual antagonism created by the adversarial system. This is a major problem
with legal intervention12. It often occurs too late. An advantage of mediation in the area of
community justice is that these centres make an effort to educate the community so that people
will bring disputes to the programmers in the early stages. Mediation facilities can generally be
offered within a few days at most and frequently outside regular office hours20. In the family
law area, the possibility of early resolution of family conflict reduces financial and emotional
costs to disputant13s.
It has to be known in mind that, litigation method is too expensive, to the extent that even the
judgment become little front of the cost used to attain such judgment to the winner, consider the
10
11
12
13
Shamir, Y; Alternative Dispute Resolution Approaches and their Application, Unesco, 2003
Ibid
Frank E.A. Sander 'Family Mediation: Problems and Prospects' (1983) 2 Mediation Quarterly at
C.W. Moore The Mediation Process Jossey Bass, San Francisco, 1986 at 14.
issue of court fees, filling fees, professional fees, and other disbursements14.Also another loses to
be incurred by both litigants may be spending longer time in litigation that may not be covered
by the courts awards. Among of the motivations under alternative disputes resolution system is
to reduce the cost and time involved in solving disputes15. Therefore, with Alternative disputes
Resolution system is possible to use process that cost small fraction of the litigation, and end
with better results. Mediation is usually designed to start and finish in one day. Beside the issue
of Cost, disputants usually share the cost of the mediator16.
1.1.3. The issue of relationship between the parties in disputes.
Alterative disputes resolution, particularly in the family and neighborhood dispute area, is that a
an agreement is an enhanced capacity in the parties to preserve a relationship for negotiations in
the future as contrasted with the result of the court adjudication process. This is particularly
important where there is a long standing relationship between the parties, which is certainly the
case in family disputes and usually with neighborhood relationships 17.Honestly speaking, in
adversarial system of litigation, the disputants become enemy from one another and it is
impossible after the end of litigation for the looser of the case to have good relationship with the
winner18. Alternative disputes resolution yields us techniques that can resolve disputes
effectively and wit out damaging relationships19. The process used for a dispute at hand can
provide a frame work to deal with anticipated disputes. In the future or recurring disputes, the
14
The Judiciary; Sustaining Judiciary Transformation: A Service Delivery Agenda, 2017 Blue Print,
http://kenyalaw.org/kl/fileadmin/ accessed 01st April, 2023.
15
Thompson, L. and Nadler, J; Judgmental Biases in Conflict Resolution and How to Overcome Them. San
Francisco, 2000.
16
Shamir, Y; Alternative Dispute Resolution Approaches and the Application, Unesco, 2003
17
S. Solberg E. Green & F Sander Dispute Resolution Little Brown & Co. Boston, 1985, at 490.
18
Ibid.
19
Rubin, J. and Sander, F; Culture, Negotiation, and the Eye of the Beholder. Negotiation Journal, Vol. 7. 1991
system may help to take advantage of the resolution in the past to avoid guidance for the future,
and to learn from experience20.
In situations where the disputants have an ongoing relation, it allows them to work through their
difficulties in a productive way that does not destroy their relationship. After litigation,
disputants rarely want to put the past behind them and work cooperatively, the dispute resolution
system may provide process that will not leave people to work together angry and frustrated with
either the result or the process itself, he disputants could rather learn information that will allow
them to work more effectively in the future21.
“A mediator does not sit in a judicial capacity. He plays the role o f a facilitator
helping the parties’ reach 21 an amicable lasting solution to their dispute. He
advocates for a negotiated settlement of the dispute. In the instant case,
Masanche, J. abdicated the role of a mediator on 19/8/2002.The Court
emphasized that since mediation is not the same as adjudication, the CPC made a
distinct separation of the mediation and judicial processes as provided by Orders
VIIIA, VIIIB and VIIIC of the CPC. more importantly”22.
2.1.4. The issue of satisfaction of both sides.
Under normal Litigations, there is procedure when person did not satisfy with the Courts
decision appeal to the higher Court. Presence of this right as stipulated under Article 13 of the
Constitution of United Republic of Tanzania as amended from Tim to time23.Different form
20
Vinod K. Agarwal; Alternative Dispute Resolution Methods, United Nations Institute for Training and Research
(UNITAR) 2001 www.unitar.org/dfm
21
Riskin, L;Understanding Mediators’ Orientations, Strategies, and Techniques: A grid for the Perplexed. Harvard
Negotiation Law Review, Vol. 1, No. 7, 1996
22
The Registered Trustees of Movimento Popular De Libertacao De Angola (Mpla) v Hamisa Mohsin and other
,Court of Appeal of Tanzania at Dar es Salaanm, Civil Revision No 1 of 2018 dated at 2022.
23
The Constitution of The United Republic of Tanzania of 1977 as amended from Time to time.
Alternative disputes Resolution, disputants an out let to discuss their frustrations; they get the
chance of express their emotions in acceptable environment, this will help the disputants be
satisfied with the outcome. A disputant will be ready to deal with the issues when he or she is
satisfied that other person has listened to his or her point of view24.A dispute resolution process
must move parties towards workable, durable and easily implement able outcome, therefore it
create a formal setting to bring parties together for serious attempt at resolving a problem, it tend
involve the parties with the view to achieving settlement. Regardless of the process used, the
solution must solve the problem that exists, procedures help to afford chance that the parties can
make real progress on the case and that the parties can communicate more fully and frankly
through a third party25.
“if this Court decides that the Mediator cannot decide preliminary points of legal
objection, it will preliminary to the great extent the functions of mediation
department in CMA, as parties may choose not to come to CMA during mediation,
knowingly nothing can be done. Such act will defeat the intended hybrid
Alternative Dispute Resolution (ADR) provision aimed at binding parties to attend
mediation but not to force them agree”26.
2.2.0 Comparison between Traditional modes of disputes resolution and Attentive disputes
Resolution
Traditional dispute resolution is common feature in almost all Africa societies and it is the oldest
method of dispute resolution compared to other dispute resolution methods. The rationale behind
that is that the societies before colonialism had their own traditional ways of resolving disputes.
24
Shamir, Y; Alternative Dispute Resolution Approaches and the Application, Unesco, 2003
Ibid.
26
Saimon Frank Mzee v SBC Tanzania Limited ,The High Court of United Republic of Tanzania, Revission case
No 378 of 2022
25
Regionally most African countries still hold onto customary laws under which the application of
traditional dispute resolution mechanisms is common. It has been said that throughout Africa the
traditions have since time emphasized harmony and togetherness27 .The two methods although
they serve the same purpose of resolving dispute they differ from each other. The following is
the distinction between the two methods
2.2.1. The issue of coerciveness
In Traditional methods, resolution of conflicts prescribes an outcome based on mutual problemsharing in which the conflicting parties cooperate in order to redefine their conflict and their
relationship. Resolution is non-power based and non-coercive, it follows then that conflict
resolution entails the mutual satisfaction of needs and does not rely on the power relationships
between the parties28. However in some circumstances the methods involves coercive measures
to reach the conclusion. R v Palamba Fundikira29. In this case a trial by ordeal was conducted to
discover who has by witch craft caused the death of 11 children of the first appellant. Four
women were accused as causatives of the death of the children and to prove their innocence they
were subjected to a traditional test of drinking a traditional medicine called MWAVI. By itself
“mwavi” is not a poison but when taken with evil mind it turns to poison. Upon taking two
women died and other two vomited. Alternative Dispute resolution is a total non-coercive
method and only intends to preserve the good relationship that the parties had before the dispute.
Alternative Dispute Resolution settlement does not require the cause of the dispute that arose but
possibility of resolving it without further coercive and undesirable measure. A settlement
27
Kenneth Cloke, The Culture of Mediation: Settlement vs. Resolution, The Conflict Resolution Information
Source, Version IV, 2005
28
Ibid
29
[1947] 4 EACA 96
process, seeks to modify the opposition without discovering or rectifying the underlying causes
of the dispute.30
Having commented above, the mechanism of disputes settlement has a lot of advantage as it is
the cure against cost in term of money and time, it re organize the distorted relationship between
the parties in disputes, mechanism does not hardly bound by huge procedural technicalities as in
the courts of law. In doing so, the method is suitable and modern one, hence it is not new in an
old bottle. The society must encourage resolving their differences through this mechanism first
before approaching the court of law.
30
Claire Baylis and Robyn Carroll, “Power Issues in Mediation”, ”, ADR Bulletin,Vol.7, No.8 [2005],Art.1, p.135
REFERENCES
CASE LAWS
Biswald Selenda Msuya Vs Attorney General High Court of Tanzania at Dar es Salaam, Civil
Case No 173 of 2005(unreported).
John Magendo v Govanni [1973] LRT 60
R v Palamba Fundikira [1947] 4 EACA 96
Saimon Frank Mzee v SBC Tanzania Limited, The High Court of United Republic of Tanzania,
Revission case No 378 of 2022
The Registered Trustees of Movimento Popular De Libertacao De Angola (Mpla) v Hamisa
Mohsin and other, Court of Appeal of Tanzania at Dar es Salaanm, Civil Revision No 1 of
2018 dated at 2022
BOOKS
Clement , M; Alternative dispute resolution (ADR) in Tanzania law and practice, Dar es Salaam:
Mkuki na Nyota Publishers Ltd, 2013
Thompson, L, . and Nadler, J; Judgmental Biases in Conflict Resolution and How to Overcome
Them, San Francisco: 2000.
Shamir, Y ; Alternative Dispute Resolution Approaches and the Application, Unesco, 2003
Solberg S, Et all; Dispute Resolution, Little Brown & Co. Boston, 1985.
JOURNAL ARTICLES
Claire, B and Robyn, C; Power Issues in Mediation, (2008), Vol.7, No.8, ADR Bulletin,
Frank E.A. Sander; Family Mediation: Problems and Prospects (1983) Vol. 2 Mediation
Law Review.
Riskin, L; Understanding Mediators Orientations, Strategies, and Techniques: A grid for the
Perplexed. (1996) Vol. 1, No. 7, Harvard Negotiation Law Review,
Rubin, J. and Sander, F; Culture, Negotiation, and the Eye of the Beholder. (1991) Vol.7.
Negotiation Journal,
PUBLICATIONS
The Judiciary; Sustaining Judiciary Transformation: A Service Delivery Agenda, 2017 Blue
Print, http://kenyalaw.org/kl/fileadmin/ accessed 01st April, 2023.
United Nations Institute for Training and Research (UNITAR); Alternative dispute resolution,
Geneva, 2001. www.unitar.org/dfm,
Tefera E and Mulugeta G; Alternative Dispute Resolution Teaching Material, Sponsored by the
Justice and Legal System Research Institute .2009.
Kenneth Cloke; The Culture of Mediation: Settlement vs. Resolution, The Conflict Resolution
Information Source, 2005,
Vinod K.Agarwal; Alternative Dispute Resolution Methods, United Nations Institute for
Training and Research (UNITAR), 2001 www.unitar.org/dfm..