LAW 401

ALTERNATIVE DISPUTE
RESOLUTION
(ADR)

Dr. D.I Gasto CUoM-FoL

 Topic One: Introduction to Alternative Dispute
Resolution
1. 1 Concept of ADR
 Alternative Dispute Resolution(ADR) is an umbrella
term which stands for processes used to resolve
disputes outside of court. These processes include,
negotiation, conciliation mediation, and arbitration.

 These methods are designed to encourage out-of-

court settlement. This means that ADR refer to any
means of settling a dispute outside the court.
 In ADR parties are able to manage their dispute by
being assisted with an impartial neutral third party like
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• The use of ADR can happen before or after
beginning of court litigation.

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1.2 History of ADR
 There is no clear information when exactly ADR had
been used as means of dispute resolution but it is
quite possible to conclude that it dates back to the
history of human society since there were no courts to
resolve differences during ancient time.

 Accordingly, informal dispute resolution has long

tradition in many of the World societies dating back to
the 12thcentury in China, England and America.

 In the Middle Ages, the prime example of ADR is to be

found in the trade fairs held annually at fixed seasons
in Western Europe. 1-5
 Travelling merchants who had grievances with one
another would have recourse from a panel of four or
five merchants chosen from those attending the fair.

 The dispute were submitted to their fellow merchants

familiar with the everyday problems of the market-
place’ who decided it without delay.

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 The concept finds basis in the bible.
 Conflicts have been recorded from the very early days of
humankind.

 We find in The Bible and similar religious and historical

documents in different cultures an account of conflicts
that were resolved by various processes, including
negotiation, mediation, arbitration, and adjudication.

 It is recorded in biblical writings, such as in the Proverbs

25:7-8: What you have seen with your eyes do not bring
hastily to court, for what will you do in the end if your
neighbour puts you to shame?
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 Similarly, in the New Testament, the apostle Matthew
exhorts: Come to terms quickly with your accuser while
you are going with him to court, lest your accuser hand
you over to the judge, and the judge to the guard, and
you be put in prison (negotiation) (Matthew 5:25).

 Negotiation was conducted not only between people, but

also between humans and God.

 Abraham negotiated with God over the fate of the people

of Sodom and Gomorra. Genesis 18:16-33

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 Romans 12:18 "If possible, so far as it depends on you,
be at peace with all men.

 Matthew 18:15 If your brother sins against you, go

and tell him his fault, between you and him alone.

 Matthew 5:23-24 So if you are offering your gift at the

altar and there remember that your brother has
something against you, leave your gift there before the
altar and go. First be reconciled to your brother, and
then come and offer your gift. "

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 Matthew 18:15-17 “If your brother sins against you, go
and tell him his fault, between you and him alone
(negotiation). If he listens to you, you have gained your
brother. But if he does not listen, take one or two others
along with you, that every charge may be established
by the evidence of two or three witnesses(mediation).
If he refuses to listen to them, tell it to the church.“

 1 Corinthians 6:1-8 “When one of you has a grievance

against another, does he dare go to law before the
unrighteous instead of the saints? ……. So if you have
such cases, why do you lay them before those who
have no standing in the church? I say this to your
shame. Can it be that there is no one among you wise
enough to settle a dispute between the brothers,..." 1-10
• 2 Corinthians [Link] "Finally, brothers and sisters,
rejoice! Strive for full restoration, encourage one
another, be of one mind, live in peace. And the God of
love and peace will be with you."

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 In Tanzania, ADR was transplanted in the 1990s as a
result of the trade liberalization which was supported
under the Structural Adjustment Program.

 In 1994 law reform movement in Tanzania played a

great role for the further development of the same.
ADR was introduced through the Government Notice
No.422 of 1994 which amended the Fist Schedule to
the Civil Procedure Code,1966.

 In Tanzania, legal and academic communities began to

have serious concerns about the pitfalls of increased
litigations because of unnecessary delay and costs. 1-12
 This was due to the court congestion, high legal cost and
waiting for long hours in courts.

However, the Arbitration Act was enacted in 1931

to govern arbitration process in the country.

The need for resolving disputes outside of court

led introduction of ADR as a compulsory course in
all higher learning institutions.

The endorsement of the use of ADR in court

contributed to its widespread acceptance in the
legal community in Tanzania. 1-13
The present
 Today, it is established that by and large, ‘judges,
recognise the advantages of ADR, and that the
statutory empowerment of judges to refer parties to
ADR (with or without the parties’ consent) plays a role
in delivering justice that is impartial and discharged
with due process, but also is efficient and affordable.

 The Civil Procedure Code was amended in 1994 to

introduce court annexed mediation as compulsory.

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1.3 Reasons for the growth of ADR in Tanzania
 In any society, conflict is normal that means conflict is a
part of our life. The fact that conflict is part of our life
requires dispute resolution mechanism.

 The main purpose of traditional, adversarial, adjudicative

litigation include truth finding in a way that is just, timely,
and has a finality and bindingness.

 The truth finding holds pride among the objectives of

formal adjudication today.

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Problems facing the Civil Justice System in Tanzania
• The Civil Procedure laws and substantive rules currently in force
are complex. Under the current law of civil procedure, the
courts have little say on how the parties should conduct
themselves before the start of proceedings. There are common
problems such as :
i. Uncertainty of the rule of extension of time to file a defence
which impacts on the period of disposal of cases.
ii. Discretion of the court to extend period to file a defence lacks
any legal guidelines.
iii. The level of delay in serving pleadings through the court is
sometimes substantial so as to affect the speedy disposal of the
cases.
iv. Litigation is too expensive for the majority of Tanzanians
especially due to delay of cases.
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However, in Tanzania court litigation has proved
otherwise. This is due:
i. The rate of civil litigation in Tanzania continues to
rise due to liberalization of economies.
ii. Litigation delays have become commonplace in
Tanzanian courts.
iii. The costs of litigation to the public—as well as to
individual litigants—are very high.
iii. The use of outdated laws
iv. Lack of enough human personals
v. Financial constraints to support court reforms.

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 The above weakness pertaining to court ligation led
the Government of Tanzania to finds an alternative
methods to court ligation to meet the need for better
quality process justice system and the need for
efficiency of justice.

 The ADR movement also focuses on alternative ways

to resolve and reduce the costs of complex, large-scale
disputes involving business and public institutions.

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 It was for that reasons ADR processes was considered
to be alternative because ADR processes are
considered to be timely, fair and just, yet final and
binding, and allows the parties to move more quickly
back to their regular lives without the costs, delay and
agony of traditional, adversarial adjudication.

 ADR processes are regarded to be simple, but

peaceful, settlement of social conflicts .

 Also ADR processes are considered to be fair and just,

but speedy, inexpensive and efficient procedure for
achieving finality for such disputes .
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1.4 Advantages of ADR:
i). Parties control the process which leads to greater
satisfaction with results,
 ADR allows the parties the opportunity to tell their side
of the story and have more control over the outcome
than normal trials overseen by a judge.
ii) lower court caseloads. It is the fact that courts are an
important aspect of the justice system. In most cases
courts are the last place people will get the outcome
they are looking for to resolve issues. However, with
many cases pending for decision in court, ADR is
considered as fair, simple, affordable and accessible
system of justice,
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iii) Ensure access to justice because it is a more
accessible forums. Access to justice is central to the
rule of law and integral to the enjoyment of basic
human rights in the society. It is an essential
precondition to social inclusion and a critical element
of a well-functioning democracy. An effective justice
system must be accessible in all of its parts.

iv) Reduced expenditures of time and money,

 Reducing Costs to Litigants. The research to date
suggests that such savings are possible, but whether
they are realized depends on the behavior of lawyers
in response to arbitration
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V) speedy and informal settlement,
 Success in expediting cases through ADR processes
depends on formal program rules, informal
implementation practices, and attorneys' responses to
the program

vi) Easy to enforce decision. This is due to the fact that

parties have satisfaction and compliance with
resolutions. The concept of client satisfaction in
dispute resolution is very relevant to the confidence in
the legal system itself, and should not be ignore.

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vii) Confidential.
 ADR processes proceedings are privileged and
confidential. Example the mediation proceedings are
entirely confidential and may not be disclosed.
viii) Reducing Court Congestion
 ADR processes may help in reducing case congestion in
court. However, this depends, in part, on the
proportion of a court's caseload that is diverted to the
program.
 The percentage of cases diverted by any particular
program is, in turn, dependent on the program's
eligibility rules, the proportion of cases eligible under
those rules, and the procedures used for determining
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eligibility.
Disadvantages of ADR
1. There is no guaranteed resolution.
[Link] can be used as delaying tactic.
3. Do not produce legal precedents,
4. May not adequately protect parties' legal rights.

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• Therefore:
the availability of effective ADR enhances
access to justice, including for those most in
need of it.
Acceptance of ADR’s role in enhancing access to
justice brings with it an acknowledgment that
public resources should be invested in it, such
as by way of legal aid funding, and investment
of resources in policy development.

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 The more ADR is seen as an integral part of ‘accessing justice’
the more likely it is to attract the attention it deserves from
governments and other justice system stakeholders.

 The Civil Justice System must upholds the principles spelt out
under article 107A of the Constitution of the United Republic of
Tanzania which are:-
i) Delivery of justice without regard to the litigants’ social or
economic status;
ii) Delivery of justice in a timely manner or without undue delay;
iii) Provision of adequate compensation in case of injuries caused
by others;
iv) Facilitating and encouraging amicable settlement and dispute
resolutions; and
v) Delivery of justice without undue technicalities. 1-26
 Alternative Dispute Resolution (ADR) has not been as
successful as expected in fostering amicable dispute
settlement despite the fact that, Article 107A of the
Constitution of the United Republic of Tanzania
requires courts to encourage and facilitate amicable
settlement of disputes.

 The principle is echoed in the provisions of the CPC

which relate to ADR and in the provisions of the
Arbitration Act in relation to arbitration.

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Types of ADR
 It is important to note that ADR does not provide a
single ‘menu’ of alternatives to litigation from which a
lawyer and client select a single option when a dispute
arises.

 Many cases will move from one option to another.

 The effective lawyer needs not only to advise on an

appropriate dispute resolution option, but to keep
options under review, to be prepared to move from
one option to another.
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 It is also important to note that ADR processes are not
used only by lawyers.

 Techniques such as negotiation and mediation are

often used in business, and dispute resolution
processes are common in relation to employment and
sale of goods and services.

 Therefore, there are several types of ADR. These

include:
 Negotiation
 Mediation
 Arbitration
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Topic Two: Negotiation
What is negotiation?
 Negotiation is any form of communication between two or
more people for the purpose of arriving at a mutually agreeable
solution. In a negotiation, the disputants may represent
themselves or may be represented by a negotiating agent or
agents.

 The people involved in the negotiation, whether the disputants

or their agents, maintain control over the negotiation process.

 It is a give and take decision making process involving

interdependent parties with different Preferences.

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Principles of Negotiation
i. Preparation: understanding the issues and the people and
equipping the team for the process.
ii. Relationship: developing a strategy for maintaining the
relationship before, during and after negotiations.
iii. Communication: building trust by applying an open
communication style.
iv. Problem-solving: exploring options and strategies for reaching
agreement.

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Reasons for Negotiation
 To Reach an Agreement
 To Make a Point
 To Settle an Argument
 To Compromise
 To Beat the Opposition

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Types of negotiation
1. Distributive Negotiation
 This is a type of negotiation whereby parties enter into
negotiation with a competitive strategies assume a "win-lose"
situation in which the negotiating parties have opposing
interests.

 Thus, In distributive bargaining, the negotiators are so

concerned with substantive results that they may advocate
extreme positions, create false issues, mislead the other
negotiator or bluff in order to gain advantage, try to ascertain
the other negotiator’s bottom line and only make concessions
rarely and grudgingly.
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 It makes unrealistic demands and very few concessions.

 It accuses, misleads and tries to out manoeuvre the other side.

 It is a strategy which works on the psychology of the other party
and tries to wear them down.
 It is designed to achieve victory at the expense of the other
side.
Its advantages
(a)It is a process of walking away with a better substantive deal;
(b)The negotiator take the initiative in negotiation;
(c)Does not yield to manipulation from the other side; and
(d)The negotiator gain a tough reputation.

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Its disadvantages are:
(a) it prevent negotiators from reaching a mutually beneficial
deal;
(b) it may lead negotiators to fail to take advantage of the full
range of possibilities on the table;
(c) It creation of misunderstandings;
(d) it inflict damage to relationships;
(e) non-sustainability of solutions arrived at; and
(f) poisoning the atmosphere for future negotiations.

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Cooperative Negotiation

 This is a kind of negotiation which is based on a win-win mentality

and is designed to increase joint gain.

 The negotiators focus on building a relationship of trust and co-

operation. They may, therefore, be prepared to make concessions
on substantive issues, principally in order to preserve the
relationship.
 The negotiators act reasonably with open communication to work
for common interests, benefits, and needs exist; trust building;
thorough and accurate exchange of information; exploration of
issues presented as problems and solutions.
 The goal of negotiations should be to obtain a win-win outcome.
A win-win outcome leaves all parties of a negotiation satisfied.1-36
 It shares information and appeals to the reasonable instincts of
the other side.
 Its primary objective is to achieve some sort of fair agreement.
Its advantages are:
(a)reaching a conclusion quickly;
(b)reaching a conclusion which is fair;
(c)building long-term relationships; and
(d)building up a good reputation and image.
Its problems are:
(a)the failure to get a good deal;
(b)the possibility of manipulation by the other side;
(c)the acquisition of a reputation for being soft; and
(d)a reluctance to walk away from the table.

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Strategies used in negotiation.
1. The problem solving strategy
 The problem solving strategy tries to measure the settlement
against the real interests of the parties
(a)exploring shared interests;
(b)identifying differences;
(c) identifying objectives of both parties;
(d)creating solutions which meet the parties’ needs; and
(e) expanding the options available to the parties

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Stages of negotiation
• There are several stages of negotiations. These
are:
[Link] stage
[Link] stage
[Link] stage
[Link] stage
[Link] stage.

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 Preparation stage
 This is the first stage of negotiation of gathering information and
do planning and goal setting.
 One of the most important aspects of a successful negotiation is
preparation. A negotiation can be won or lost in the preparation
phase.

 The negotiator must decide as to what kind of information he

need. Information that will help to define objectives.
 It is important to map out the way we want the negotiation to
proceed and plan what we want to achieve.

 Adequate preparation allows the negotiator the opportunity to

clarify the goals and identify the key issues and parties involved,
and to identify weaknesses in the team’s strategy before the
negotiation takes place. 1-40
 A well-designed negotiation plan and an overall strategy are at
the heart of adequate preparation.
 The structure of the negotiation(s) including: setting, timing and
sequence.
Understand the negotiator’s role.
 Prior to the commencement of any negotiation process, it is
important that the negotiator’s role be understood as follows:-

 The first role is chief negotiator. The chief negotiator does more
the of talking, control when and what others team members
say, and has the great decision making authority.

 The second role is file management. The task is to find paper

with the information requested. Team effectiveness is
enhanced by a file manager who anticipate and know when to
make the information available. 1-41
• The third role of the team negotiating is observer. This has to be
assigned to senior team members. observers assess the opponent
and watch for an opportunity to dived them against one another.
They listen for signal that speaker may to be involved to notice.
• The fourth role is recorder. Record all agreement no matter how
minor but all offers too. Memory is unreliable people may
change.
The Setting the place of negotiation
• This should be considered in line with (a) geographic setting (b)
accessibility and (c) means of communication.
Choosing who is in the Room
 This can be achieved by learning about the other parties in the
room before setting a team.
 Evaluate the status of who should be in the room. The people in
the room, from both parties, should be of equal status. It 1-42
is
Choosing A Style
 Choosing a negotiation style that will help set the tone as well
as influence the ultimate outcome of the delegation’s
negotiation.
 Choose a style that the team members believes is the most
effective means to achieving the negotiation’s goals.

 The style should be chosen based on the type of negotiation,

the timing and the parties involved, evaluate what style would
be most effective in achieving the negotiation’s goals.
Establishing Trust
 Trust is the underpinning of the negotiation: without it the
negotiation will fail. Therefore all parties must be mindful of
trust and its importance throughout the negotiations.
 It is important to demonstrate that your delegation trusts that
the negotiation process can be successful to resolve the 1-43
 Therefore:
(i) be attentive to the physical comfort of all the parties in the
negotiation.
(ii)be polite, courteous and receptive to the statements, ideas and
positions taken by the other parties from the outset.
(iii) engage in some casual discussion prior to starting the day’s
negotiations and during the breaks, if appropriate, to establish
a rapport with the other parties.
(iv)Observe the culture and customs of the other parties where
appropriate.
(v)Do not mislead.

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Opening stage
 The participants will be introduced to each other with their job
titles or negotiating role. Experienced negotiators will go
through these formalities in order to establish themselves and
their position even when they know the other side well.
 This is the stage of laying out arguments on the basis of
information gathered in stage one.
 Therefore,
i. Establish basic rules.
ii. Create the agenda (i.e. define what the delegation wants to
accomplish and set expectations).
iii. Suggest who should attend on each side.
iv. Define the location and duration of the negotiation.

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Greetings/ Initial Impressions Of The Parties
 The negotiator that is first in the room is in a position to greet
people as they arrive.

 This is the first opportunity to set the tone for the entire
negotiation .

 The greeting may be casual, formal, respectful, friendly,

accommodating.
 Decide manner of greeting while being aware of cultural
expectations.

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Bargaining stage
Interpreters
 Interpreters are often necessary in negotiations between
people from different cultures.
 If at all possible, it is useful to have sufficient interpreters and
equipment to perform simultaneous translation if translation
into more than one language is required.

Considering Confidentiality
 In any negotiation, all parties will have confidential information
that will both help and hurt their causes.

 Consider in advance what information needs to remain

confidential and what can be used to bargain with later.

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Communicating Persuasively
 The use of language is the principal means of persuasion.
Persuasion, however, includes not only the spoken word, but
also body language, facial expression, tone, and even silence.
All are tools to be used in the negotiation process.

Using Questions to gain an Advantage

 There are several ways to use questions to gain an advantage in
a negotiation. Ask open-ended questions to find out more
about the other parties’ positions.
 Open-ended questions can engage the other parties and make
them feel more comfortable.

 Asking questions that begin with “Who, What, When, Where,

How, Why, Explain and Describe” rather than immediately
challenging the other party’s position. This can allow to discover
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Closing stage and signing the Agreements
 During any negotiation there may be several times when the
parties will reach the end of their sessions. If the negotiations are
not concluded a process needs to be agreed upon to maintain the
momentum and to preserve the progress that the parties will
hopefully have made. Reducing agreements to writing, agreeing
on future sessions.
 The end of a negotiation process often marks the beginning of a
new relationship between parties or a new phase of a long-
standing relationship.

 At the end of each negotiation session, it is imperative that the

parties confirm each and every significant agreement reached. In
this regard the parties should Seek verbal confirmation on every
significant agreement and stay calm during this confirmation
period and be reassuring to the other party.
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Summarizing the Agreements
 The parties should prepare a written agreements at the end of
each negotiation session.

 They must leave the room with a binding commitment. The

agreement should be clear and concise and avoid using
ambiguous or vague words easily capable of different
interpretations.

 It is important to have technical language expert review all drafts

to ensure that the written document accurately reflects the
parties’ agreements.

 Where necessary parties should seek clarification or corrections

where necessary from each other.
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The Final Negotiated Settlement
• At the conclusion of the final negotiation session, it is critical to
commit the overall negotiated settlement to writing. This will
create a record for all involved, as well as for future parties, so as
to avoid any inaccuracies as to the parties’ understanding of the
agreement.
• Furthermore, the process of writing will often focus the parties as
to whether there is, in fact, an agreement. The agreement may
also not be legally enforceable until committed to writing.

• The writing should set forth the terms of the agreement. (a) It
should be clear, well-organized and concise and should cover all
points of the negotiation. (b) It should express the agreement
simply.
• The writing should be objective. It should express the agreement
in a non-partisan way.
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 • The writing should memorialize all major issues that were agreed
upon during the negotiation, and nothing agreed upon should be
excluded from the writing.
 The writing should contain clear performance milestones, specify
who is responsible for compliance, and to the extent possible,
include clear methods of monitoring and enforcing such
performance.
 The agreement should be in the language of each of the parties to
the negotiations. If the parties speak different languages.
Communication after concluding the agreement
 Once an agreement has been reached the parties should agree upon
and issue a joint public statement. The statement should include the
relevant terms of the agreement or a summary of the agreement
and the parties’ commitment to abide by the agreement.
 The parties need a method to disseminate their joint statements and
their individual messages.
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Compliance
• The parties should consider drafting a post-negotiation checklist
of “action” items and responsibilities.
• The parties should keep a list of participants and their
responsibilities, both during the negotiations and afterward.

• The parties should consider establishing a regular schedule of

post negotiation meetings or summits to enforce the negotiated
regime. Such schedule should be determined at the negotiating
table before the parties leave the negotiation room.

• The parties must be prepared to allocate time, money and

personnel to the implementation of the settlement agreement, as
well as permit the monitoring of compliance with the agreement
and enforcement of the agreement
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Limitations of negotiation
 Negotiation is plainly impossible if the parties to a dispute
refuse to have any dealings with each other.
 Serious disputes sometimes lead the states concerned to sever
diplomatic relations, a step that is especially common when
force has been used.
 Negotiation will be ineffective if the parties’ positions are far
apart and there are no common interests to bridge the gap.
 Article 283(1) of the UN Convention on the Law of the Sea

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2. The ‘principled’ strategy
 A great deal of emphasis is placed on the ‘principles’ which
underpin ‘principled negotiation’.
 This take into account:
(a) Interests.
 With respect to interests, the strategy is to avoid bargaining
over positions.
 Positions reflect the basic demands of disputants. Interests, on
the other hand, reflect the reasons behind those demands.

 To uncover the underlying interests, questions must be asked to

discover the reasons behind those positions. This is why
sharpened communication skills are an undoubted asset to a
negotiator.

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(b) Relationships
 With respect to relationships, the principle is to separate the
people from the problem. The personality differences should not
be part of negotiation. This principle, therefore, urges that the
parties be soft on each other but hard on the problem.

(c) Communications
 Communication remains a critical tool in any form of negotiation.
Good negotiators apply skills of active listening, paraphrasing and
summarising to encourage back and forth communication.

 Through reasoned arguments, a party stands a better chance of

addressing the underlying interests behind a problem.

 Listening skills also play a vital role in negotiation.

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 Nothing promotes a dialogue better than for the other side to
know that they have been heard and understood.

 Similarly, non-verbal communication plays a vital role in

negotiation.

 The ability to appreciate and interpret the several ways in

which we communicate through our behaviour is a critical skill.

 Communication through body language, facial expression, hand

gestures, posture, smile, grin or frown can affect the outcome
of a negotiation.

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(d) Options – that is, invent options for mutual gain.
 Option generation is one of the most important stages in any
negotiation.
 Here, the parties are encouraged to generate as many options
as possible to satisfy their interests without making an initial
determination as to their suitability.

 So, the parties are encouraged to create and invent options

without restriction, without criticism and without commitment.

 In evaluating the options, it is best to rely on objective criteria

as a way to establish the legitimacy of the selected option.

 Examples of objective criteria could be: (a) market value; (b) the
terms of a contract; (c) expert opinion; (d) scientific standard;
(e) cost of living ; or (f) rate of inflation. 1-58
(e) Commitment – that is, accepting a deal/agreement.
 The agreement finally comprises of the accepted negotiated
proposal that is in accordance with the norms of both the
negotiating parties.

 Therefore, in both domestic and international negotiations, the

following basic tenets need to be emphasized:
(a)focusing on the problem and not the people;
(b)identification of underlying causes;
(c) creative solutions;
(d) ownership of those solutions;
(e) win-win outcomes;
(f) maintenance of relationships;
(g) use of objective criteria; and creative deployment of BATNA.
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Basic skills for effective negotiation.
(a)effective communication;
(b)importance of privacy;
(c)recognizing and addressing ‘iceberg’ factors in a dispute;
(d) identifying conflict fuelling indicators;
(e)building capacity in the disputants to see different points of
view;
(f) recognizing communication blockers; and
(g) learning to handle difficult conversations

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Ethical challenges to Negotiators:
 The effective negotiator must recognize when the questions are
relevant and what factors must be considered to answer them.
 Ethics are broadly applied social standards for what is right or
wrong in a particular situation, or a process for setting those
standards. There are several challenges:-
1. Should negotiators merely endeavor to obtain settlements that
are "satisfactory" to clients or to maximize return to their
clients?
2. Should negotiators seek more than "fair settlements“ if they
think that more can be ethically obtained?
3. Can "truth" really be separated from "justice" in the adversarial
system?
4. When, if ever, may negotiators appropriately lie? Note that "a
lawyer shall not knowingly make a false statement of material
fact or law to a third person. 1-62
1-63
Topic Three: MEDIATION
What is Mediation?
 Mediation is a consensual process in which a neutral third party
helps others to negotiate a solution to a problem.

 Mediation is a structured process whereby an impartial

mediator facilitates communication between those in dispute in
order for them to understand each other better and for them to
come up with mutually acceptable solutions that will improve
the working relationship in the future.

 The mediator has no authority to make binding decisions for

the disputants. The mediator has no power to impose an
outcome on disputing parties.
 Thus, what the mediator does is to use certain procedures,
techniques and skills to help the disputants to arrive at 1-64
a
• Depending on the reason for mediating and what seems to be
impeding agreement, the mediator may:
i. Encourage the exchange of information,
ii. Provide new information,
iii. Help the parties to understand each other’s views,
iv. Let them know that their concerns are understood,
v. Promote a productive level of emotional expression,
vi. Help negotiators realistically assess alternatives to settlement,
vii. Encourage flexibility,
viii. Shift the focus from the past to the future,
ix. Stimulate the parties to suggest creative settlements,
x. Invent solutions that meet the fundamental interests of all
parties.
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Therefore;
 mediation is commonly defined as a process in which a third
party neutral, the mediator, assists disputing parties in reaching
a mutually agreeable resolution.

 Mediators aim to facilitate information exchange, promote

understanding among the parties, and encourage the
exploration of creative solutions.

 Mediator invites the parties to engage in a potentially creative

and collaborative method of problem solving, without forcing a
decision on either party.

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• Mediation Session,
• Mediator Listening Skills,
• Mediator Techniques, and
• Mediation Goals.

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A MEDIATION SESSION
• mediators attempt to focus the negotiations on satisfying the
vital interests of each party; others focus on legal rights,
sometimes providing a neutral assessment of the likely (or
probable) outcome in court or arbitration.

• Some encourage the active participation of both lawyers and

clients; others do not.

• As a general rule, mediators are required to maintain neutrality.

• Mediation process is sequential, in that each step leads to the

next, it is also cyclical and self reinforcing.
• That is, the higher the level of trust, the more information is
likely to be shared. 1-68
Why mediate?
 Mediation offers a number of potential benefits that are
unavailable in traditional methods of dispute resolution.

 Mediation’s relatively informal and flexible process allows the

mediator and participants to take different approaches to
creative problem solving.

 In providing an accelerated resolution, mediation quite often

saves parties time and money. Moreover, in reaching a
resolution, mediation parties can often avoid much of the
emotional drain from engagement in continual conflict.

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 Mediation also provides a different kind of forum for
communication between the parties. In many cases, parties
value the degree of privacy mediation affords. Those who are
uncomfortable discussing personal matters in an open
courtroom may be more relaxed in a private setting.

 Mediation also provides the potential for parties to exercise

self-determination.

 Finally, mediation provides an opportunity for the parties to

agree to creative solutions. When disputes are resolved through
court or other adjudicatory processes, the customary result is a
judgment in favor of one party over another.

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A Mediator’s Role(s)
 Mediation is a process in which an impartial and neutral third
person, the mediator, facilitates the resolution of a dispute
without suggesting what should be the solution.
 The mediator play a number of roles including:-
1. Organizer.
 In some cases, a mediator can help disputants enormously
simply by providing administrative assistance in organizing and
managing the interactions between the disputants. When will
the disputants meet? What kind of information should be
exchanged in advance? Who should be in the room?.
2. Communication Director. During the course of a mediation, a
mediator may structure how remarks are made and
information is exchanged—almost assuming the role of
choreographer.
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 Many disputes arise because people do not understand or
appreciate what the other has said or the perspective the other
holds. By shaping the exchange of information, mediators can
help parties to understand each other better.
 This process often requires mediators to act almost as
translators or interpreters, particularly when parties arrive at
the dispute with different background experiences or frames of
reference.
3. Intervenor and Guide. When disputants get stuck in stalemate
or impasse, mediators can assist the parties by diagnosing the
difficulties and obstacles in the parties’ direct negotiations.
Often mediators are able to get the negotiations back on-track.
In doing so, mediators serve as teachers of negotiation and
mediation.

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4. Encourager of Settlement.
• Parties reasonably expect that the mediator will help the
parties in finding a settlement—if one is possible. At the same
time, however, mediators’ persuasive efforts must not lapse
into coercion.
5. Listener.
 Perhaps the most important role of a mediator is that of
listener.
 Many disputants want an opportunity to be heard. By listening
intently, mediators learn more about the issues in dispute and
the potential interests that may assist in resolution.

 Mediators who actively engage in listening also may serve as a

model for the parties, potentially encouraging them to listen to
each other 1-73
QUALITIES OF A MEDIATOR
It is necessary that a mediator must possess certain basic qualities
which include:
i. complete, genuine and unconditional faith in the process of
mediation and its efficacy.
ii. ability and commitment to strive for excellence in the art of
mediation by constantly updating skills and knowledge.
iii. highest standards of honesty and integrity in conduct and
behavior.
iv. neutrality, objectivity and non-judgmental.
v. ability to be an attentive, active and patient listener.
vi. a calm, pleasant and cheerful disposition.
vii. patience, persistence and perseverance.
viii. good communication skills.
ix. open mindedness and flexibility and creativity. 1-74
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Stages of mediation
1st Stage of mediation: pre-mediation or “getting to the table,”
2nd Stage of Mediation: the opening of mediation,
3rd Stage of Mediation: the parties’ opening presentations,
4th Stage of Mediation: mediated negotiations and
5th Stage of Mediation: agreement.

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1st Stage: Pre-mediation or “getting to the table,”
 The first stage is for the mediator getting the parties to agree to
mediation.
 The parties arrive at mediation by (1) contact with a mediator
or mediation center that, in turn, contacts the other party; (2)
referral of both parties by a prosecutor or court, sometimes
accompanied by pressure to mediate; (3) mediator instigation;
(4) legal compulsion to mediate.
2nd Stage: the opening of mediation
 The mediator’s opening statement varies to fit the parties and
the dispute. It may be lengthy and detailed, as it lays the
foundation for a series of mediation sessions that can span
weeks or months.
 the opening may be brief, dealing primarily with mediation
rules, confidentiality issues and the impartiality of the mediator.
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 Mediation and its rules are carefully explained with emphasis on
the informal and consensual nature of the process, the mediator’s
impartiality and the responsibility of the parties to find their own
solutions.

 The parties are assured ample uninterrupted time to tell their

stories.

 The limits of confidentiality may be explained, and the parties are

informed that the mediator may want to meet with them alone
(“caucus”) as well as together in order to help bring about a
settlement.

 At the same time, they are assured that during caucuses they will
have an opportunity to discuss things they may not want to say
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in
the presence of the other disputant.
 The mediator may congratulate the parties for attempting to
work out their differences amicably and hold out the likelihood,
based on prior experience, that the dispute can be resolved in a
comparatively short time.

 Questions are encouraged and the mediator uses them to

confirm that the parties understand the path on which they are
embarking and that they agree to abide by its rules.

 The mediator tries to make the parties as comfortable

1-87
3rd Stage: The parties’ opening presentations,
 Typically, the parties are given “uninterrupted” time to describe
the dispute at the conclusion of the mediator’s opening.

 The initiator of the complaint usually begins.

 Sometimes the parties resolve the dispute after hearing each

other’s opening statements with minimal direction from the
mediator.

 When the parties come to the table angry, a straight-forward

presentation may not be forthcoming.

 They may need to deal with their feelings before they can
discuss the situation clearly. 1-88
The mediator typically uses the opening presentations to:
i. Learn as much as possible about the parties’ interests and
priorities and determine whether underlying conflicts must be
addressed to resolve the immediate dispute.
ii. Close the gap between the facts and the parties’ differing
perceptions of them.
iii. Demonstrate positive aspects of the relationship and the goals
the disputants have in common.
iv. Encourage and model negotiating behaviors more likely to
produce settlements.

1-89
4th Stage: mediated negotiations
1. Looking on cooperation
 Mediators try to prevent disputants from locking themselves into
positions before they have either listened to the other party or
given full thought to their own interests and needs.
2. Ordering issues
 The mediator must decide which issue should begin to be
discussed.
 Conversely, the mediator may decide to deal with an overriding
issue before any others are addressed.
3. Identifying Alternatives
 The parties have to work hard to identify acceptable alternatives.
 Mediators tend to withhold them until the parties have had ample
time to suggest their own ideas because the parties have more
information, are better able to find an acceptable solution
1-90
4. Holding Caucuses
 Caucuses are private meetings the mediator conducts with each
party during the course of mediation.
 They are used to:
i. provide an opportunity for a party to vent and cool down when
emotions flare;
ii. encourage honesty and get to the root of the dispute; clarify an
issue; spend time alone with a party to build trust;
iii. provide time to review the issues and alternatives; encourage
movement when a party is unyielding;
iv. help a party determine if a position is realistic; remind a party
of the consequences of not reaching agreement; get
information that may help generate or shape new alternatives;
v. check whether a party has thought through the potential
consequences of a probable agreement or separate one party
from the threatening or intimidating conduct of the other. 1-91
 Before concluding the caucus, the mediator asks whether there
is any information from that meeting which should not be
disclosed to the other party.
 To maintain credibility, the mediator usually caucuses with all
parties before bringing them back together in joint session.…

1-92
5th Stage: agreement.
 As negotiations progress, the mediator summarizes areas of
agreement to motivate the parties toward a final settlement. If
the parties move to common positions, the mediator typically
helps draft the agreement.

 The mediated agreement may be verbal or written. It may be

executed on the spot or held pending review by counsel. It may
be a private agreement or incorporated into a consent judgment
in pending litigation.

 There may be an enforcement clause that provides for monitoring

by the mediator or another party and specifies what the parties
will do if they believe the agreement has been violated.

1-93
 When the parties fail to agree on all issues, the mediator may
try to salvage the positive result of mediation.
 They may have learned to negotiate better and may, in fact,
settle unresolved issues themselves later.

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• MEDIATOR LISTENING SKILLS
• Key mediator goals in interjecting reflective statements or
questions are:
1. to improve the mediator’s understanding of each participant’s
interests and emotions

2. to be and to demonstrate the skills of an avid and empathic

listener to understand each other.

3. to encourage good listening by the participants (restating a

point that other participants might not have listened to,
understood, or taken the time to consider).

1-95
The skills of a mediator
 The mediator employs a variety of common mediation
techniques to handles the participants’ emotions and interests,
gradually moves them toward settlement, escapes a seeming
impasse, and finds ultimate resolution.

 The following are mediator techniques skills:

 Premediation contact to prepare the parties,
 Mediator caucuses with each party,
 Soliciting legal arguments from the parties’ lawyers,
 Evaluating the likely outcome of litigation
 Summarization,
 Allowing the parties to vent about emotional matters,
 Creating deadlines, and
 Mediator proposals.
1-96
[Link] listening and attention
 Giving people space and safety to say what they need to say,
giving good-quality attention and asking appropriate,
encouraging questions of all parties in a fair and equal way.
2. Summarizing
 Being able to remember and re-present key facts and issues in a
non blame, non-inflammatory way.

3. Building rapport
• Creating an atmosphere of trust and safety, helping people feel
that their thoughts and feelings are important and understood,
giving them the chance to make their own decisions at their
own pace, demonstrating a sincere interest in helping parties to
resolve their differences.
1-97
4. Facilitation
 Helping people to communicate and listen to each other, allowing
appropriate, non-damaging expression of feelings, keeping the
overall focus and direction of the mediation.
5. Impartiality
 Remaining non-judgemental, impartial and fair throughout, giving
equal attention and time to each person. Remaining professional
and impartial – not taking sides.
6. Problem solving
 Helping parties clarify the main issues that can be tackled in the
mediation and encouraging them to explore and agree on win–
win solutions, changes of behaviour or work practices, and
strategies for action.
7. Conflict management
 Staying calm and assertive, and encouraging communication even
when feelings are running high. Defusing anger and damaging,1-98
or
Principles of Mediation
• Mediation is a specific dispute resolution method with its
own set of operational principles. These principles are:-
i. It is voluntary – all parties need to agree to mediation.
ii. It is solution/agreement focused.
iii. Parties offer the solutions themselves.
iv. The mediator is impartial and does not take sides.
v. It is confidential.
vi. If mediation is unsuccessful, formal or legal procedures
can be invoked.

1-99
Confidentiality in Mediation
 confidentiality is a central principle in all mediation and
contributes to both the success and the integrity of the mediation
process.
 The private and confidential nature of the mediation meetings is
one of the reasons why many people choose it over the court
litigation.
 Mediation is confidential in the following ways:
i. The mediation is conducted in a private space (away from the
everyday work space and work colleagues).
ii. The number of people who know a mediation is taking place is
usually kept to the minimum (ie, the initiator of the mediation,
who may be a manager or a human resource person, and the
parties themselves).

iii. The ‘content’ of all the discussions within the mediation process
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iv. The individual meetings with the mediator (which take place
before the joint face-to-face mediation meeting when the
mediator brings the parties together) are also confidential.

v. No recording of the mediation is retained except for the

voluntary mediation agreements. This means that if any notes
are taken by the mediator or any notes written up on a
flipchart, these are destroyed at the end of the mediation.

vi. The written mediation agreements, which are usually the end
result of the mediation are held by the parties themselves. The
agreements are not public property.

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Advantage of Mediation
i. Mediation offers the fullest possible involvement of the
participants in the control, accountability and determination of
the positive outcome of the event.

ii. Mediation remains an informal and confidential process.

iii. Mediation is highly cost-effective. Mediation is financially

advantageous when compared to the time and financial costs of
other more protracted or third-party-based solutions.

iv. mediation offers uniquely the most significant chance of

multiple win–win outcomes for all the participants.

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• Cheaper than trial
• Compromise not combat
• Responsive to needs
• Creative settlement e.g. apology
• Compliance is much higher compare to court decision

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 Generally Mediation can: reduce the cost of resolving the
dispute; resolve the dispute quickly; allow disputants to focus
on more enjoyable activities; reduce the stress associated with
conflict; resolve conflict privately; result in creative solutions;
allow people to express their views directly to the other side;
avoid unpredictable results from being imposed; result in a
win/win outcome; avoid further destruction of relationships;
and allow disputants to determine what is fair.
Disadvantages
 An unnecessary deadlock can result. The disputants may not
reach a deal even where there are many possible good deals
that could be reached.
 Unsuccessful can increase legal cost
 Unsuccessful can lead to delay

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GROUND RULES
 There are a number of ground rules that a mediator may set at
the commencement of the mediation. These are:
1. One person speaks at a time
 One ground rule is that one person speaks at a time. This
sounds simple, logical and easy to follow, but can become
difficult for many disputants to adhere to when they become
frustrated at the other side’s allegations.
 The mediator may therefore enforce the ground rule by asking
disputants to write their comments down when they think of
them so that they can recall them when it’s their turn to speak.
2. No personal attacks
 A number of mediators set a ground rule prohibiting personal
attacks.
 The mediator will ask the disputants to focus on solving the 1-106
3. Use of inappropriate language
• Some mediators set a ground rule that there be no swearing or
inappropriate language in the mediation.
4. Caucus rules
• The mediator will explain to participants that it is likely that, at
some point in the mediation, the disputants will have private
meetings, also known as caucuses, with the mediator.
• During caucuses, people may wish to disclose to the mediator
confidential information that they do not want the other
disputant to know.

5. Termination of the mediation

• The mediator will want to discuss with the disputants how the
mediation can end. During the minimum time, no disputant
may unilaterally terminate the mediation. 1-107
MEDIATION – A WITHOUT PREJUDICE PROCESS
• Mediation is effectively a ‘without prejudice’ process, whereby
the parties to a dispute are assisted by a neutral third party to
resolve the dispute on terms which hopefully all will find
acceptable.
• The preferred way in which evidence is taken is orally where
the witness is sworn and the other parties have an opportunity
to test the evidence by means of cross-examination. Other ways
of submitting evidence include the use of affidavits, which are
sworn written statements.
The Without Prejudice State
• It is fundamental to the court system that all persons can be
compelled to give evidence, subject to certain restrictions.
• The restrictions relate to a number of factors, including
incompetence by way of age and mental ability, public interest,
without prejudice privilege and professional privilege.
1-108
• Without prejudice privilege
 In the context of mediation, it is the ‘without prejudice’ privilege
which is of importance.
 The courts have accepted since the last century that, in the
interests of due legal process, negotiations between the parties
which are aimed at resolving the dispute should be given a special
status namely that, these negotiations should be encouraged.
 Thus the doctrine of ‘without prejudice’ evolved. In Walker v
Wilsher (1889), the original doctrine was born.
Principles of the process
• The Court of Appeal in Rush & Tomkins v GLC set out six principles
as to how the doctrine would operate. These were:
1. The purpose of ‘without prejudice’ privilege was to enable the
parties to negotiate without risk of their proposals being used
against them if the negotiations failed. Once a settlement had
been agreed, the privilege was revoked. 1-109
2. It was confirmed that the parties could mutually agree to refer to
such discussion or correspondence even if a settlement had not
been reached.
3. It was possible for the parties to use a special form of words which
at least between themselves precluded reference to the
correspondence even after settlement had been reached.
[Link] was stated that the privilege did not depend upon the existence
of proceedings.
5. The courts could always determine, after considering a document,
whether the privilege applied to it.
6. The privilege extended to the solicitors of the parties to the
‘without prejudice’ negotiations.

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Professional Privilege
 The doctrine of professional privilege applies to the advantage
of a client who has the right to claim privilege in respect of
communications with his legal adviser relating to the
proceedings.
 The privilege is that of the client and not of the lawyer.

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When to mediate
 The decision to go to mediation may be taken at any time from
the moment a dispute arises until the moment before a judge
hands down a ruling.

 The only decision the parties need take is that mediation might be
appropriate to their particular dispute.

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Court-Annexed Mediation
 Court-Annexed Mediation (CAM) is one of a set of alternative
dispute resolution mechanisms increasingly used to divert a
portion of civil cases from the dockets of overloaded state and
federal trial courts.

 CAM is variously referred to as "mandatory", "compulsory" or

"court-ordered", descriptors that highlight one distinct aspect
of these programs relative to traditional commercial
arbitration.

 In CAM, state statutes or court rules establish criteria that

identify cases eligible for arbitration. Disputants whose cases fit
these criteria must participate in arbitration as a prerequisite to
trial.
 The provisions of Order VIIIA and VIIIB which mandate a court
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annexed mediation process in Tanzania.
• In the case Fahari Bottlers Limited and Another v. Registrar Of
Companies and Another [2000]TLR104, the court observed that
‘We need to remind all concerned, that is, trial judges,
magistrates and advocates, that mediation not only facilitates
the expeditious disposal of cases, but is less costly. That Under
mediation the parties themselves decide their dispute under
guidance of the court. The transparent and participatory nature
of the process makes it a very portent tool for the judiciary and
the legal profession in combating corruption both at the Bar
and the Bench.

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 In Charles Mussa msoffe v. NBC Holding Corporation[2000]TLR
127, the court held that (i) a mediator should make an order
condemning a defaulting party in costs under Order SA, rule 5,
where the default is caused by exceptional circumstances; (ii) ft
is an exceptional circumstance where a party does not appear
at a mediatory conference, genuinely and reasonably feeling
that submitting to mediation process would compromise his
principles.

1-122
• Tanzania harbours Authority v. Mathew Mtalakule and 8
Others [2002] TLR 386, the court held that a default judgment,
being more serious, cannot be entered under Order VIIIA, rule 5
of the Civil Procedure Code 1966 during mediation proceedings,
and a Notice of Mediation cannot be used for entering a default
judgment.
• Notice of Mediation.
• That we think that under Order VIllA, rule 5, in case of a
defaulting or an unprepared party, a court could give any of the
following orders, that is to say (a) to adjourn the matter to
another day; or (b) that the mater should go for a hearing
before another judge.
• The court could also order costs together with any of the two
order, mentioned above.

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• Procedural rules established by legislation include:

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