The aim of this essay is to give an analysis of the concept of Court Annexed Mediation and how

it relates to Rule 24(1) of the Industrial Relations Court (arbitration and mediation) Rules 2002,
and outline the effect of the judgment in the case of Bank of Zambia v Nyambe and others on
rule 24 (1) and on the practice of Court Annexed Mediation.

Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation

between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is
a process close in its premises to negotiation: “mediation is an assisted and facilitated negotiation
carried out by a third party”.1

The mediators, who are hired, appointed, or volunteer to help in managing the process, should
have no direct interest in the conflict and its outcome, and no power to render a decision. They
have control over the process, but not over its outcome. Power is vested in the parties, who have
control over the outcome: they are the architects of the solution.2

The mediator’s role is multiple: to help the parties think in new and innovative ways, to avoid the
pitfalls of adopting rigid positions instead of looking after their interests, to smooth discussions
when there is animosity between the parties that renders the discussions futile, and in general to
steer the process away from negative outcomes and possible breakdown towards joint gains.
Mediation is a voluntary process (except where there is a law of mandatory mediation in place).
The parties agree to the process, the content is presented through the mediation, and the parties
control the resolution of the dispute.3

Mediation has a special advantage when the parties have ongoing relations that must continue
after the dispute is managed, since the agreement is by consent and none of the parties should
have reason to feel they are the losers. It is therefore useful in family relations, disputes between
neighbors, in labor relations, between business partners, and adjacent political entities. Mediation
creates a foundation for resuming the relation after the particular issue has been resolved.

The mediation process can be adapted to meet the needs of the parties during the process and in
formulating a solution. This may involve the choice over location of the mediation, the time

1
FOSKETT, D. (1989). The Law and Practice of Compromise. London: Sweet & Maxwell.
2
GOLDBERG, S.B., SANDER, F.E.A., and ROGERS, N. (1992). Dispute Resolution: Negotiation, Mediation and Other
Processes. Aspen Publishers Inc.
3
GOLDBERG, S.B., SANDER, F.E.A., and ROGERS, N. (1992). Dispute Resolution: Negotiation, Mediation and Other
Processes. Aspen Publishers Inc.

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frame, the people who are to be involved, the selection of acceptable objective criteria, and many
other choices related to the process. Most important, mediation is not conducted under a fixed set
of rules, as is the case in a court of law.4 Mediation is an informal process, designed to suit the
needs of the parties. It appeals to parties who feel that they want to be partners in the process of
resolving their conflict and take part in the decision on the fate of their dispute. It allows the
parties to present their arguments in an informal manner, not bound by the procedures of the
legal system.5

Furthermore, 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 confide in the
mediator.

One of the main reasons for using mediation as an alternative to the judicial process is to
preserve and potentially improve relationships between the parties. The mediation process works
well in the case of a long-term relationship or interest-based disputes. In the process, the parties
gain understanding of each other’s motives, needs, and interests. This understanding can often
improve the relationship between them. When the relationship is maintained and improved
through the resolution of the conflict, the parties have an increased capacity both to maintain the
agreement and to resolve future conflicts.

The mediator should consider the following to be part of her/his task:

 Help to coordinate the meetings.

 Introduce the parties.
 Explain the process to the parties.
 Set the agenda and rules.
 Create a cease-fire between the parties.
 Open communication channels.
 Gain the confidence and trust of the parties.
 Gather information and identify obstacles.
 Allow the parties to express feelings and vent emotions.
4
BROWN, H., and MARRIOT, A. (1993). ADR Principles and Practice. London: Sweet & Maxwell.
5
BROWN, H., and MARRIOT, A. (1993). ADR Principles and Practice. London: Sweet & Maxwell.

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  Help the parties to identify and understand their interests and priorities.
 Help the parties with brainstorming creative options and solutions.
 Help in defining acceptable objective criteria.
 Help the parties understand the limitations of their demands through what is known as “a
reality test.”
 Help in evaluating alternatives.
 Allow the process to move forward according to the needs and pace of the parties.
 Help in crafting the agreement.
 Help in validating the agreement by the courts (if there is a court that has jurisdiction).

Having introduced the topic of mediation it is worth noting that the Zambian judiciary has also
introduced a court-annexed mediation programme. Mediation is a more formal process in which
the mediator helps the parties resolve their dispute. The mediator in non-court-annexed
mediation is chosen by the parties to the dispute while in court-annexed mediation the mediator
is chosen by the court.

In terms of mediation rules, there are discrepancies between the Industrial Relations Court
(Arbitration and Mediation Procedure) Rules, 2002 which apply to mediations involving cases
commenced in the Industrial Relations Court and the High Court (Amendment) Rules, 1997
which apply to mediations of cases referred from the High Court. One such discrepancy is the
period within which the mediation process must be completed. Under Order XXXI Rule 7 of the
High Court (Amendment) Rules, 1997, a mediator is required to complete the mediation process
within sixty days from the date of collecting the record, whereas under Rule 15 (2) of the
Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002, the mediator is
required to complete the mediation process within ninety days of collection of the suit, action or
legal proceedings in respect of which the mediator has been appointed. Another major
discrepancy is in relation to mediation fees chargeable under the Rules. Under Order XXXI, Rule
13 of the High Court (Amendment) Rules, 1997 as amended by the High Court (Amendment)
Rules, 1998,6 a one-off mediation fee in accordance with the scale prescribed by the Chief
Justice is payable by the parties to the suit in equal proportion, while under Rule 28 of the
Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002, the fee is paid at

6
Statutory Instrument No. 69 of 1998.

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every sitting. The author is of the view that this distinction is unjustified since mediators perform
the same functions irrespective of which court the matter has been referred from. In addition, all
the mediators come from the same pool of mediators. Fortunately, the distinction relating to
mediation fees will soon be a thing of the past in light of a new statutory instrument which is in
the process of enactment which will make the mediation fee payable only once for Industrial
Relations Court mediations as well. This provision will be in line with the High Court Rules.

Rule 24(1) of the Industrial Relations Court (arbitration and mediation) Rules 2002 provides
thus:-

24.(1) Where a party fails to comply with the order of reference to arbitration under
these Rules, the Court or Judge shall-

(a) make a default judgement or an appropriate order against that party if that party is
respondent; or

(b) strike out or dismiss the case where the party is the applicant or complainant.

In Bank of Zambia v Richard Nyambe and others.7 The complainants commenced an action
against the respondent in the Industrial Relations Court seeking an order for reinstatement or in
the alternative damages for wrongful dismissal. The respondent resisted the action. This action
was however not tried because on 17th August, 2005, the Court made an order for mediation.
When the matter went to mediation, the respondent did not attend the mediation on two
occasions. Thereupon, the complainants obtained judgment in default pursuant to section 24(1)
(a) (b) and 2 (a) (b) of the Industrial Relations Court (Arbitration and Mediation) Rules 2002.
Subsequent to the entry of the judgment in default, the respondent took out summons to set aside
the judgment in default. The trial Court refused to set aside the judgment in default. The
respondent appealed against the refusal by the trial Court to set aside the judgment in default. It
was held that:-

1. The mediation conducted in the High Court and the Industrial Relations Court is
Court Annexed Mediation; meaning it is part of the judicial system.

2. Mediation provides the greatest degree of party control over the process and over the
outcome.
7
2006) Z.R. 132

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 3. Where for whatever reasons mediation fails, the case should be referred back to the
judge who shall summon the parties to fix a hearing date.132

4. In so far as it relates to mediation, Rule 24 (1) and (2) of the Industrial Relations
Court (Arbitration and Mediation) Rules 2002, is in conflict with the philosophy of Court
Annexed Mediation. Mediation was never intended to take away the parties right to have
their case heard and determined by the Court.

From the foregoing it is clear that the effect of the judgment in the Nyambe case that unlike
voluntary mediation Court Annexed mediation cannot oust the jurisdiction of the court. This
decision is sound on the grounds that involuntary mediation should not take away the jurisdiction
of the court. In this instance the court can stay court proceedings awaiting the outcome of the
mediation proceedings.

In conclusion, the court-annexed mediation program is a program under which cases already in
court and deemed suitable for mediation are allocated to judiciary-trained mediators for
mediation. If the mediation fails, the cases are referred back to the court.

BIBLIOGRAPHY

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BOOKS

BROWN, H., and MARRIOT, A. (1993). ADR Principles and Practice. London: Sweet &
Maxwell.

FOSKETT, D. (1989). The Law and Practice of Compromise. London: Sweet & Maxwell.

GOLDBERG, S.B., SANDER, F.E.A., and ROGERS, N. (1992). Dispute Resolution:

Negotiation, Mediation and Other Processes. Aspen Publishers Inc.

CASES

Bank of Zambia v Richard Nyambe and others (2006) Z.R. 132

LEGISLATION

Industrial Relations Court (arbitration and mediation) Rules 2002

Statutory Instrument No. 69 of 1998.

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