Question
- You have successfully assisted the parties in civil case no. 5 of 2020, to reach a settlement out of court.
Required:
Draw and file legal documents showing the terms and conditions of the settlements
.
- Is alternative Dispute resolution (ADR) a good method of resolving disputes? Give reasons.
Question one
Introduction:
An arbitral awards refer to the financial decision of the arbitrator or an umpire in arbitral proceeding. It is a nature of a judgment in a court of law, but it is usually in numbered paragraphs according to the issues considered and decided. Although there is no particular form of formulating arbitral award, it must contain reasons. The award shall further state the seat of the arbitration and the date when the award is made. [1]
Requisites of an arbitral award
The law and practice relating to an arbitration in Tanzania requires that an arbitral award must
- Resolve all issues,
- Not contain extraneous issues which go beyond the jurisdiction of the arbitral tribunal; or matters which were not referred to it.
- Be final and unconditional.
- Be certain and capable of performance by the parties , and
- Be capable of enforcement by the parties.
Failure to meet any one of the foregoing criteria would amount to misconduct on the part of the arbitrator or umpire. That could be grounds for challenging the arbitral award. The award must be dully signed by the arbitrator. Unless the parties had agreed otherwise, In Tanzania arbitral award is a final and binding upon the parties.
Cost of arbitral award
In any judicial or Quai judicial proceeding, there are considerable costs to be incurred by the parties and presiding judicial officer. These kinds of costs would have not been incurred were the proceedings not initiated. As such it is a cardinal rule of procedure that a successful party should be entitled to be awarded cots. So in arbitral proceedings, the award usually contains an order for costs.
Costs of an award are sum due to the arbitrator in respect of his remuneration and expenses. If these are not paid, the arbitrator may decline to deliver the award. They include the fees of the arbitrator and administrative costs. Assessment of costs in arbitration is usually in the discretion of the arbitrator.
Analysis of the scenario
John Ally and Maria Jonas are all residents of Old Moshi , they are neighbor in their settlements. They have been quarreled before on matter of Land demarcation which separates their owned land, After long mis-understanding they entered into agreements on settling up this dispute. They later come to me for resolution.
In this scenario I used to assist en settling up their dispute where later on I provided an award in attachments with terms and conditions to be implemented by the parties. I used form No. 5 of the second schedule of Arbitration Act[2]
FORM 5
AWARD
THE ARBITRATION ACT
In the matter of the arbitration Act and arbitration between JOHN ALLY of OLD MOSHI and MARIA JONAS of OLD MOSHI
Whereas, in pursuance of an agreement in writing dated the 22 day of 08 2020, made between JOHN ALLY, of OLD MOSHI and MARIA JONAS of OLD MOSHI. JOHN ALLY, and MARIA JONAS, have referred to me MATELA ALMASI, the matters in difference between them concerning the dispute of domestic land demarcation
Now I MATELA ALMASI, having duly considered the matters submitted to me, do hereby make an award as follows:-
I ward:-
- That
JOHN ALLY of OLD MOSHI be awarded a total sum of Tsh 15000/= Maria Jonas for maintenance of degraded land.
- That
- MARIA JONAS of OLD MOSHI Pay a total sum of Tsh 15000/= to John Ally as an award for maintenance costs for degraded land
(Signed)
MATELA ALMASI
Arbitrator
Dated 16 of 2020
Terms and Conditions
- That MARIA JONAS of OLD MOSHI will take necessary measures not to take or use consumable resources from JOHN ALLY's land without permission from the land owner.
- That, a small trench will be digged as a manner agreed in collaboration of both parties to all water move degrading any one land.
- Beacons should be receivable and visible to every party in order to clear out the question of demarcation.
- That, any parity shall be responsible for any infringements of this term and condition against another party.
Question two.
Meaning of Alternative dispute resolution.
ADR can be defined as all mode of dispute resolution/settlement other than traditional dispute settlement through court of law. ADR comprises a lot of mechanism which share the essential characteristics of being different from dispute mechanism of litigation in state courts[3] Mainly these forms, or Mechanism are: Negotiation, Mediation (reconciliation) and Arbitration. In most Jurisdictions, like Tanzania, ADR has two modes:
- Methods of resolving disputes outside the judicial mechanism and;
- Informal methods attached to or pendant to official judicial mechanism
Rationale of ADR
Historically the Modern ADR movement of Dispute in the US in 1970's[4] as a result of two main Concern in the US judicial system. First there was a cal for better quality process and outcome in the judicial system and the second, there was a need for efficiency of justice.[5] These rationally are herby discussed.
- The need for better Quality outcome process and outcome in the judicial system.
The call for better quality of dispute resolution was attributed to lack of responsiveness and sensitivity of the judicial system. There was also lack f participation of members of the community in the formal judicial system. The range of outcomes provided by the formal justices were pre-determined and limited. At the same time, the justice system did not provide a continuing social relationship amongst disputants in certain matters.
- Need for efficiency of justice
Parallel to the concern for better quality in the judicial process in the US, there was a call for efficiency of justice. This was attributed by the fact that the judicial process was too expensive, overwhelmed by cumbersome rules of procedure. The judicial process was also seen as unnecessary prolonged, resulting in too expensive and time consuming. Furthermore, It was argued that judicial process was congested with, or, over-loaded, y caseload,. Hence, there was a need, for disputes settlement system that would divert cases from the court and reduce case backlogs and provide other and efficient ways of providing justices.[6]
Advantages of alternative dispute resolution.
ADR is generally regarded as having many benefits over the litigation mechanism-ranging ranging from being less expensive, speedier, less formal and formal flexible. In this regard ADR suits and function well in situation where the disputant are maintain ongoing relationships even later the disputes is resolved. These situation include employer and employee, Landlord and tenant and also family relationship. Arbitration can be defined as a mechanism for resolution of civil disputes which take place, usually in private, pursuant, to an agreement between the parties to the disputes, under which the parties agree to be bound by the decision to be given by the arbitrator according to law, after fare hearing, such decision being enforceable by law. Under common law, there is an order version of the definition of arbitration that was made in 1850's by Ramilly. M.R in Collins V. Collins[7] to the effect that "arbitration is reference to the decision of one or more persons either with or without an umpire, of some matter or matters in difference between the parties. However, this definition could apply to any other form of ADR as it does not clearly state the role of the arbitration in the disputes resolution. Also arbitration is the impartial or neutral which the part to be neutral in order to reach the decision of the contract a third party make the decision is not a judge court but is the person make decision of the dispute between the parties example in the case of DOWNS VS. TANESCO, this was the issue of (ICC) was an arbitration for solving the conflict in arbitration way and the appeal was allowed.
It is true that Alternative dispute resolution is a good method of dispute resolution, that is due to the following advantages.
A single procedure Through ADR, the parties can agree to resolve in a single procedure a dispute involving intellectual property that is protected in a number of different countries, thereby avoiding the expense and complexity of multi-jurisdictional litigation, and the risk of inconsistent results.
Party autonomy Because of its private nature, ADR affords parties the opportunity to exercise greater control over the way their dispute is resolved than would be the case in court litigation. In contrast to court litigation, the parties themselves may select the most appropriate decision-makers for their dispute. In addition, they may choose the applicable law, place and language of the proceedings. Increased party autonomy can also result in a faster process, as parties are free to devise the most efficient procedures for their dispute. This can result in material cost savings.
Neutrality ADR can be neutral to the law, language and institutional culture of the parties, thereby avoiding any home court advantage that one of the parties may enjoy in court-based litigation, where familiarity with the applicable law and local processes can offer significant strategic advantages.
Cheaper
Mediators will commonly claim that mediation is quicker and cheaper than going to court. Mediation can be much cheaper than taking legal action. However, research published by the government shows that this is not always the case. As you might expect, when mediation ended in a settlement, people thought it was quicker and cheaper going to a full court hearing. When the mediation didn't end in a settlement, they thought it just added time and costs to the process.
Confidentiality,
ADR proceedings are private. Accordingly, the parties can agree to keep the proceedings and any results confidential. This allows them to focus on the merits of the dispute without concern about its public impact, and may be of special importance where commercial reputations and trade secrets are involved.
Finality of Awards, unlike court decisions, which can generally be contested through one or more rounds of litigation, arbitral awards are not normally subject to appeal.
Cost Saving, This is another advantage of alternative dispute resolution one of the largest reasons parties choose to resolve their disputes outside of the courts is cost. Judicial process for resolving any disputes involves court fees, documentation fees, advocate's fees and many other extra costs. Moreover, if there is corruption present, the cost may rise even higher ADR does not involve expert fees or courts costs. Alternative dispute resolution usually costs much less than litigation, allowing smaller financial disputes a financially viable way to be settled. ADR also saves the money of government.
The legal system and the judge control every aspect, ADR is much more flexible. Furthermore, in the case of arbitration the parties have far more flexibility in choosing the application of relevant industry standards, domestic law, the law of a foreign country, a unique set of rules used by the arbitration service, or even religious law, in some cases.
CONCLUSION
Generally Alternative dispute resolution has proven very helpful in many different types of legal disputes. These include civil cases and other family matters, professional liability cases, personal injury situations, insurance issues, and commercial law disputes. The efficiency of Arbitration, Conciliation, Mediation, Negotiation as a means of providing quicker, faster, cheaper, efficient and somewhat agreeable settlement, in a private atmosphere, without publicizing the issue has made the ADR system a hot favorite amongst both litigants as well as corporate, The popularity and acceptability of the system is quite evident from the fact that, now even courts of law are seriously encouraging this concept. Alternative Dispute Resolution is the use of methods such as mediation and arbitration to resolve a dispute instead of litigation. It also has some challenges or disadvantages as what the rules needs every things which have an advantages also have a disadvantages.
REFERENCES
Books:
- Alternative Dispute Resolution in Tanzania Law and Practice Clement J. Mshamba
- United Republic of Tanzania, "Delays in the Disputes Resolution of Civil Suits." Dar es Salaam, Law Reform Commission of Tanzania, 1986, p, 4.
Website
- https://www.wipo.intl
[1] Kapinga W, et al, "Tanzania," Global arbitration Review, 2008.
[2] Arbitration Act (CAP 15 R.E 2002)
[3] Klmei, M.C, "Alternative schemes for resolving Banking and Financial Disputes" The Tanzania Lawyer, Vol 1 No. 2, 2012, pp, 46-71, p.54,
[4] Menkel-Meadow, C,., "Alternative Dispute resolution". In Kritzer, H.M, (ed.), Legal system of the World: A political, Social and cultural Enclyopedia, 20-02, P, 40.
[5] Kamau, W, "Law, culture and Dispute resolution: Prosepect for alternative Dispute rsolution (ADR) in Africa, "East African Journal of peace and Human rights. Vol. 15 No. 2, 2009.
[6] Kamau, Op. Cit
[7](1858) 26 Ikav.306, 312 reported to English Case at 916-919
