Alternative Dispute

Resolution

ELIUD KITIME
 Introduction
• Disputes have been part and parcel of human interaction ever since. As long as
human interaction exist, disputes are there.

• Since then, man has been trying to settle the disputes through various ways.
Because of the negative effects of the disputes, the need of disputes settlement
always exist.

• Dispute settlement has been practiced through judicial and non-judicial

mechanisms. Judicial disputes settlement involve the use of courts of law and law
to resolve the disputes. Non-judicial mechanisms employ the informal means and
mechanism outside the courts of law to settle the disputes.
 Introduction
• Alternative dispute resolution has been common practice in many
judicial and non-judicial systems in many jurisdictions of the world. It
has been preferred much due to its many benefits.

• Alternative dispute resolution is often referred to as ADR.

• It describes the ways that parties can settle civil disputes with the
help of an independent third party and without the need for a
formal court hearing.
 What is ADR
• Alternative dispute resolution stands for the mechanisms of settling the disputes
other than the use of courts of law. It is the dispute settlement mechanisms
outside formal litigation.

• In other words, alternative dispute resolution refers to a variety of techniques

for resolving disputes without litigation.

• ADR seeks to address one fundamental question – what is the best way for
people to deal with their differences?

• Through ADR, disputants think about the resolution of their conflict, based on an
understanding of their interests
 Alternative?
• Why is it alternative? And is it alternative to what? What has dissatisfied
parties in the normal litigation procedures? And why not calling it a
substitute?

• When you look for an alternative, you still need the previous system in the
sense that only in some occasions will you prefer the alternative ones. So
you do not abandon the old ones.

• Alternative Dispute Resolution is an alternative to adjudication.

Alternative Dispute Resolution is not new in fact because the customary
disputes settlement procedures were all forms of dispute resolution.
Forms of ADR

Negotiation Mediation

(Re)
Arbitration
Conciliation
 Negotiation
• Negotiation is communication whereby parties who have opposing
interests discuss the form of any joint action which they might take to
manage and ultimately resolve the dispute between them.

• Negotiation is a process where two parties in a conflict or dispute (fight)

reach a settlement between themselves that they can both agree on.

• Negotiation is a bargaining process between parties when both seek to

reach an agreement that settles a matter of mutual concern or resolves a
conflict.
 Mediation

• Parties in a dispute may refer their dispute to

an independent third party who will act as a
go-between.

• The mediator will help the parties discuss their

dispute in order to try to settle it.
 (Re)Conciliation

• Similar to mediation but the (re)conciliator may

suggest a way to settle to the dispute.

• It is bringing of opposing parties or individuals into

harmony to settle the dispute.
 Arbitration
• Arbitration is the adjudication of a dispute by one or
more specially-appointed experts or lawyers.

• People who work as arbitrators often belong to the

Chartered Institute of Arbitrators.

• Arbitration is governed by the Arbitration Act.

 Origins of ADR
• ADR is as old as humanity itself.

• The origins of ADR trace to traditional societies.

• Traditional societies, without the trappings and paraphernalia of the

modern state, had no coercive means of resolving disputes.

• So, consensus building was an inevitable and necessary part of the

dispute resolution process.
 Origins of ADR
• The court system only developed as a necessary by-product of the
modern state.

• Societies in Africa, Asia and the Far East were practising non-
litigious means of dispute resolution long before the advent of the
nation state,

• They practiced for the building of long-term relationships was the

bedrock on which those societies rested.
 Origins of ADR
• However, modern ADR movement began in the US in 1970s
due to the two main concerns such as better quality
processes and outcomes in judicial system and the need for
efficiency of justice.

• Through National Pound Conferences in 1976, the multi-door

courthouses, community justice centres, small claim cases,
court mandated arbitration, family mediation were
established which triggered the growth of ADR.
 Sources of ADR

Constitution of URT of 1977

• Article 107A(2) (d) – duty of court to promote and enhance dispute
resolution among persons involved in the disputes
Acts of Parliament
• Arbitration Act, 2020
• Civil Procedure Code, Order VIII – Arbitration, Negotiations and
Mediation Procedure as amended
• Employment and Labour Relations Act, s 86
• The Criminal Procedure Act, s 163 as amended
 Sources of ADR

Subsidiary legislation
• Mediation and Arbitration Rules, GN No. 64 of 2007
• The Arbitration Rules
• The Plea Bargaining Rules
Case laws
• Tanzania Motor Services Ltd and Others v Mehar Singh T/A Thaker Singh, Civil Appeal No. 115
of 2005 – arbitration clause
• Mvita Construction Co. v Tanzania Harbours Authority, Civil Appeal No. 94 of 2001 – arbitration
agreement and powers of arbitrators
• TANESCO v Dowans Holding SA (Costa Rica) and Dowans Tanzania Limited (Tanzania) –
recognition of awards
• Fahari Bottlers Ltd & Another v. Registrar of Companies & Another – compulsory mediation
 Sources of ADR
Customary laws and Islamic laws
• Civil disputes such as marriage, inheritance etc.
• Section 11 of the Judicature and Application of Laws Act
• Consistent with the constitution of the United Republic of Tanzania and written laws

Received laws
• Section 2(3) of the Judicature and Application of Laws Act
• Common laws, doctrines of equity and statutes of genera application
• Lacunae and circumstances of Tanzania must permit.

Conventions
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958
 Benefits of ADR

economy
Privacy
Informality
and
Choice and flexibility
expertise of
Speed impartial
neutrals
 Benefits of ADR

Win-win
situation
Recognition
of the
Diversity needs of
and the parties
Finality adaptability
 Benefits of ADR

Retention of
beneficial
Private savings business and
in time and personal
Savings in energy relationships
public
Involvement of expenditure
the parties in
creating
imaginative
solutions
 Drive for ADR

Inefficiency
and popular
An increasingly frustration with
long, arduous litigation.
Escalating legal litigation
and emotional process
Rising demands costs
on scarce
Court public
overcrowding resources
Expense

Delay

The adversarial
nature of the
trial
 Conclusion
• ADR gives people an involvement in the process of resolving their disputes that
is not possible in a public, formal and adversarial justice system perceived to be
dominated by the abstruse procedures and recondite language of the law.

• It offers choice: choice of method, of procedure, of cost, of representation, of

location. Because it is often quicker than judicial proceedings, it can ease burdens
on the courts. Because it is cheaper, it can help to curb the upward spiral of legal
costs and legal aid expenditure.

• ADR demonstrates the tremendous possibilities of our legal systems but requires
a massive change of focus. Ordinary trial procedures never contemplated the use
of electronically generated evidence or the resolution of disputes on line or
through cyberspace. ADR leads to an examination of the future direction of the
law