Zimbabwe
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Parties invariably informally negotiate to some degree at the outset of a dispute either as an alternative to, or at the same time as, litigation or arbitration. Invariably, parties can incorporate their preferred dispute resolution mechanisms in their contracts. The main types of ADR in Zimbabwe are negotiation, mediation, conciliation, expert opinion and expert determination.
Negotiation is a formal or informal communication process between parties with the intention to reach a compromise to the satisfaction of both parties.
Mediation is a voluntary, non-binding, private process in which a trained independent person helps the parties to try to reach their own negotiated settlement. This is the most common method of ADR and has a high success rate.
Conciliation involves a conciliator helping the parties reach consensus. The conciliator’s views are not binding but persuasive to the parties.
With expert opinion, an expert will answer a series of questions which represent the areas of dispute between the parties. The non-binding process is usually persuasive in influencing the resolution of the dispute without recourse to a hearing
Expert determination involves the appointment of an expert in the subject matter of the dispute to make a decision which the parties agree beforehand to accept as binding. It is usually adopted for specific technical issues. Although generally classified as a form of ADR, this is significantly different from the other methods, most importantly in that the outcome of the process is generally binding on the parties and non-appealable.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Engaging in ADR does not itself stop time running of prescription of actions nor does it impose an automatic stay on any proceedings or arbitration already commenced, although this can simultaneously be achieved by other means. The right to litigate or arbitrate is also not directly affected by engaging in ADR. Unless the parties have agreed they will try an ADR process before issuing proceedings, litigation or arbitration can be commenced or continued whilst ADR is pursued and will be available if no settlement is secured.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
No, but conciliation is mandatory in relation to employment disputes.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes. The parties are at liberty to incorporate ADR mechanisms into their commercial contracts.
When does ADR generally take place?
ADR can take place any time from pre-issue to appeal but the optimum timing in any dispute will depend on the particular circumstances, including whether the issues in dispute are sufficiently clear.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes. ADR in Zimbabwe is generally confidential and will be protected by without prejudice privilege. There is no public record of the ADR process and it remains confidential between the parties.
Does the output from ADR create precedents?
No. Since ADR is private and confidential, it does not create a precedent, only court judgments create precedents. Any settlement reached during ADR is only binding on the parties involved in the ADR and does not bind any third parties.
Who bears the costs of ADR?
Generally, the cost burden of the ADR process is shared equally between the parties involved. However, parties are free to agree on any other mechanism on costs.
Is your jurisdiction subject to any specific rules for cross border ADR?
There is currently no dedicated reciprocal regime for ADR cross-border disputes between Zimbabwe and any other State.
Zimbabwe has not signed The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) and is currently not subject to any specific rules on cross border ADR.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
Disputes relating to divorce or criminal proceedings cannot be resolved through ADR.
There are no particular qualification required for a mediator. Parties are free to identify any mediator based on expertise or competence in a field related to the dispute at hand.
Contacts
Patience Mathuthu Senior Associate, DMH Legal Practitioners
T: +263 77 546 1902 E: pmathuthu@dmh.co.zw
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