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CHAPTER TWO CONCEPTUAL FRAMEWORK OF ADR
A professor of law rightly points out that the theoretical foundations and concepts that have been responsible for ADR developments cannot be overlooked for the reason that the underlying knowledge base provides the essential framework for policy makers and practitioners alike to rely on when deciding how or whether to use ADR processes or techniques in various dispute settlings.1 The author could not agree with the learned professor more and for that reason, does in the succeeding section, among other things, examine two basic concepts that have contributed to shaping the way ADR is today. These are the concepts of ‘dispute’ and ‘justice’.
Concept of Dispute
Justiciable disputes distinguished from behavioural conflict
To the layman, conflict and dispute may mean much the same thing since both involve a disagreement over some issue. However, there are some conceptual differences between the two terms. Conflict exists where there is an incompatibility of interests.2 The Concise Oxford English Dictionary defines conflict as a serious disagreement or argument; a prolonged armed struggle; an incompatibility between opinions, principles, etc.3 Uncontained conflicts sometimes manifest themselves in verbal or behavioural disagreements which could lead to violence and conflicts at the international level. Such conflicts have the potential for violence and for that reason are usually condemned. However, conflict is an integral part of human behaviour, and there could be no movement or change without it. Decision-making necessarily contains an element of conflict; exchanges of ideas involve conflict; the democratic process is built on the basis of the normalcy of a conflict of ideas and interests.4 Conflict is an eternal feature of human existence.5 An irreconcilable conflict becomes potentially damaging when natural mechanisms for solving it such as negotiation or discussion are inadequate to deal with it. In such a case other methods or processes may have to be resorted to.6 Conflict management or resolution is usually approached through processes providing an understanding of the conflict and seeking to deal with it by consensual means.7 Although some conflicts may be resolved by dispute resolution procedures such as injunctions or interdicts or other court orders which restrain unlawful behaviour, by arbitration and by mediation, conflicts are not necessarily amenable to resolution by dispute resolution processes.8 On the other hand, disputes are amenable to resolution by dispute resolution processes.
A dispute may be defined as a class of conflict which manifests itself in distinct, justiciable issues. It involves disagreement over issues capable of resolution by negotiation, mediation or any other dispute resolution process involving a neutral third party. The differences can usually be examined objectively by the parties in the case of negotiation or by the neutral in the case of the other methods and the neutral can take a view on the issues to assess the correctness of one party or the other. David Foskett notes that an ‘actual’ dispute will not exist until a claim is asserted by one party which is ‘disputed’ by the other.9 According to Brown and Marriot,10 the question as to whether or not a ‘dispute’ exists can be highly relevant, for example, where arbitration or other dispute resolution provision in a contract provides that disputes are to be referred to arbitration or to any other stipulated process. If no dispute exists, then a party wishing to enforce any aspect of the contract may do so through the courts; but if a dispute does exist then the specified process must be followed. Disputes between people are normal part of human interaction.11 Whenever people gather together whether in families, clubs, teams, political parties, nations or international coalitions, disagreements will emerge.12 Prathamesh Popat, points out that it is elementary knowledge both that disputes arise in society due to interaction amongst its members and that the greater and/or the more frequent the interactions amongst those with differing needs or conflicting interests, the higher the chances of disputes.13
Disputes are an expression of people’s differences and by airing those, opportunities are provided to better understand one another so as to peacefully resolve the differences. Popat is of the view that the opening up of world markets, given their diversities, has been a contributor to the eruption of differences, misunderstandings and miscommunications, often culminating in complex disputes.14 According to Popat, the advent of e-commerce and the Internet has emphatically underlined the phenomenon of the ‘global village’. The unsavoury result of this has been that disputes are not only arising at a far greater pace than ever before, but the same entail even greater complexities due to their cross-border and cross-culture nature.15 Pirie correctly states that the ways in which disputes are resolved can redefine relationships, redraw boundaries, redistribute wealth, reform laws, restrict movements, remove barriers, reshape thinking, and reframe problems and much more. 16
The distinction between behavioural conflicts and justiciable disputes is important in the ADR discourse because of the differences in approaches which need to be taken in their resolution and the limitations of dispute resolution processes in relation to behavioural conflicts. It has been argued that although conflict can cause distress and is usually viewed negatively, it can function in positive ways and may motivate people to take action and change their situations in ways that improve their lives and better fulfill their self-interests. Those in conflict who want to get it resolved may be forced to consider their role in creating the conflict and often gain insight about themselves and others.17
Nature of disputes
Disputes vary in nature and range. Even within a category, differences are readily apparent due to differences in issues and factors that can influence the opposing parties. For this reason, it is easy to see why no one dispute resolution process can be suitable for all types of disputes. Some simple disputes may be resolved through negotiation, while some disputes require the assistance of a neutral third party who can introduce carefully devised procedures for examining and possibly, evaluating the issues. Yet some disputes require the intervention of an expert neutral third party or the use of an adjudication process. Thus, processes will range from relatively informal ones suitable for personal disputes, to very sophisticated and professionally designed procedures which can be used for major, complex and often highly technical issues.
It is thus of utmost importance for a neutral third party to understand the particular dispute she is faced with and its implications and also the various dispute resolution processes available. This is so because such a neutral third party would be able to select or design a process most suitable for the particular issues having had a better insight into the parties’ concerns, motivations, aspirations and interests. In any event, parties have greater confidence in a neutral third party who clearly understands their dispute and the underlying issues as she is most likely able to reach a settlement which is acceptable to both parties.
Subject matter of disputes
According to Brown and Marriot, disputes are not readily capable of neat categorisation. Nevertheless, some analysis of and broad classification may provide a better understanding of what a dispute may involve, and where it fits in the range of disputes, conflicts and possible resolution processes.18 These authors list the following as some of the possible subject matters of disputes while noting that many disputes are complex and boundaries may overlap and blur:
ventures and others. Issues can arise in different fields of commercial activity, such as banking, shipping, commodities, intellectual property, the construction industry and many others;
Consumer disputes – between supplier and consumer;
Property disputes – including those between landlord and tenant, or joint tenants, rent reviews, boundary disputes and the like;
Issues arising in tort – including negligence and failure of duties, and including also insurance claims relating to these;
Issues arising on separation and divorce – including those relating to children, property and all financial matters;
Other family issues – including Inheritance Act claims, family businesses and other disputes within families;
Trust issues – including issues between trustees and beneficiaries;
Disputes giving rise to consequences in criminal law;
Neighbourhood, community, gender, race and ethnic issues; and
Inter-personal disputes arising between individuals.19
The above classification is not exhaustive and shows just how wide the subject matter of disputes can be.
Nature of issues
Issues surrounding disputes are wide-ranging in nature. A dispute may relate to rights, status, reputation, lifestyle, quantifiable monetary claim or any other aspect of personal or commercial activity. The issue can be single or a variety of issues; they may range from being simple to very complex. Further, the issues may relate to fact or law or a mixture of both; technical differences; differences of understanding; differences of perception of fairness, concepts of justice and morality, culture, values and attitude and a host of other issues.20
Concept of Justice
‘Justice’ is a difficult concept to define and one capable of varying meanings depending on one’s perspective.21 According to Torstein Eckhoff, it is characteristic of principles of justice that they are general and vague.22 Attempts to concretise the concept have not been entirely successful. However, some conceptions of justice by some leading theorists are outlined here to assist the reader to appreciate the problems of definitions associated with the concept and get a better perspective of the concept.
Social Justice
John Rawls’ thesis and conception of justice is premised on what he terms ‘the original position’. From this original position of inequality and behind a veil of ignorance, people set up institutions and determine the principles that will assign rights and duties and distribute benefits.23 Since people are not aware of what positions they will occupy in future, they will choose what is just and unjust and this will regulate all future agreements. Rawls refers to justice as fairness because principles of justice are agreed to in an initial situation which is fair. The exact principles may differ from society to society, hence too the conception of justice. According to Rawls however, since everyone’s well-being is dependent upon a scheme of co-operation, the people will choose two basic principles, namely, equality in the assignment of basic rights and duties (liberties) and socio-economic inequalities would be arranged in such a way that they benefit everyone particularly the least advantaged, and are attached to positions and offices open to everyone.24 According to Rawls,25 justice is the first
Thus according to a Women and Law in Southern Africa Research Trust (Zambia) Publication, the concept of justice has proved to be a very elusive one. See WLSA (1999) Women and Justice in Zambia: Myth or Reality, p.7. virtue of social institutions.26 He presents the main idea of justice as fairness, a theory of justice that generalises and carries to a higher level of abstraction the traditional conception of the social contract.27 Additionally, according to Rawls, one may think of a public conception of justice as constituting the fundamental charter of a well-ordered human association.28 The primary subject of justice, according to this theory, is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social co-operation.29 In summary, Rawls defines the concept of justice as meaning a proper balance between competing claims.30 Mulela Margaret Munalula, points out that Rawls provides a contemporary institution-focused understanding of justice in voluntary contractual arrangements.31 She alludes to the fact that Rawls’ work has been widely acclaimed and equally widely criticised for his theory of justice.32 According to the critiquing philosophers, criticisms of Rawls’ theory has exposed deep and irremediable flaws rendering any attempt to develop a critique of existing institutions and procedures based on such theory abortive.33 Dias argues that the search for justice is dependent upon control of power and liberty.34 He strongly criticises John Rawls’ attempt to formulate a general theory of justice, on the grounds of the theory’s ahistorical and sweeping assumptions. Those arguing in favour of Rawls’ theory are of the view that such criticism misses the common sense moral point of Rawls’ conception.35 Thus Westphal, for example, argues that Rawls’ theory is a psychologically and historically realistic entry point to the question about what is just and therefore such questions often arise from the experience of injustice: from a conflict between the demands of individuals acting from a particular place or interest in society.36 It is for the above reason that Munalula feels that Rawls provides a valuable framework for a critique of institutions and procedures at domestic and international levels.37 Rawls’ theory is therefore, a useful starting point, at the abstract level, for regulating power and maximising justice in an institution or system.
CHAPTER ONE INTRODUCTION
CHAPTER TWO CONCEPTUAL FRAMEWORK OF ADR
2.1 Concept of Dispute
2.2 Concept of Justice
2.3 ‘Alternative’/ ‘Appropriate’ Dispute Resolution Discourse
2.4 The Quest for an ADR Philosophy
CHAPTER THREE THE DEVELOPMENT OF ALTERNATIVE DISPUTE RESOLUTION
3.1 Development of Alternative Dispute Resolution Internationally
3.2 Types of Alternative Dispute Resolution Mechanisms
3.3 Matching the Process to the Dispute
3.4 Perceived Drawbacks of ADR
3.5 The Multidoor Courthouse Approach
CHAPTER FOUR HISTORICAL BACKGROUND TO DISPUTE RESOLUTION IN ZAMBIA
4.1 Pre-Colonial Period Dispute Resolution Mechanisms
4.2 Colonial Period Dispute Resolution Mechanisms
4.3 The Judicial System under the Federation of Rhodesia and Nyasaland
4.4 The Judicial System at Independence
CHAPTER FIVE INSTITUTIONS OF JUSTICE DELIVERY IN ZAMBIA
5.1 Post Independence Judicial System
5.2 The Judicature
5.3.1 The Commission for Investigations
5.4 The Informal Institutions
5.5 Non-Governmental Organisations
CHAPTER SIX EVALUATION OF THE PERFORMANCE OF TRADITIONAL JUSTICE DELIVERY INSTITUTIONS IN ZAMBIA
6.1 The judicature
6.2 Commissions
6.3 The Informal Institutions
6.4 Non-Governmental Organisations
CHAPTER SEVEN PARADIGMS OF ALTERNATIVE DISPUTE RESOLUTION IN ZAMBIA, LEGAL AND INSTITUTIONAL FRAMEWORKS
7.1 Development of Alternative Dispute Resolution in Zambia
7.2 Alternative Dispute Resolution methods currently in use in Zambia
7.3 Legal and Institutional Frameworks
CHAPTER EIGHT CONCLUSIONS AND RECOMMENDATIONS
8.1 Summary of Findings
8.2 Recommendations
8.3 Concluding Remarks
References
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