Written by Erick Mukiza, Court Certified Mediator
Alternative Dispute Resolution (ADR) plays a significant role in Tanzania's legal system, particularly in resolving civil disputes. Here's how ADR is incorporated:
Legal Framework
ADR was introduced in Tanzania in 1994 through Government Notice No. 422, which amended the First Schedule to the Civil Procedure Code Act (1966). This amendment introduced three new orders:
Order VIIIA: Mediation in the Court-Annexed Mediation Scheme
Order VIIIB: Mediation by Private Mediators
Order VIIIC: Arbitration
The amendments made it mandatory for all civil cases filed in courts to be referred to ADR, specifically mediation, before proceeding to a full trial.
Types of ADR Used
The main types of ADR used in Tanzania are:
Negotiation: Direct discussions between parties to resolve disputes amicably.
Mediation: A neutral third party (mediator) facilitates discussions between parties to help them reach a mutually acceptable solution. Mediation can be court-annexed or private.
Arbitration: A private dispute resolution process where an arbitrator or panel of arbitrators makes a binding decision on the dispute.
Conciliation: Similar to mediation, but the neutral third party (conciliator) may offer opinions on the merits of the case to help parties reach a settlement.
Benefits of ADR
The primary reasons for introducing ADR in Tanzania were to:
Reduce heavy caseloads and backlogs in civil courts
Avoid unnecessary procedural technicalities prevalent in traditional courts
Reduce expenses involved in pursuing litigation in courts of law
Preserve relationships between parties after the dispute resolution process
ADR has become an integral part of the Tanzanian legal system, and its importance is recognized by making it a compulsory subject in higher learning institutions for lawyers
What challenges does ADR face in Tanzania?
Alternative Dispute Resolution (ADR) in Tanzania faces several challenges that hinder its effective implementation and acceptance. Here are the primary challenges identified:
Lack of Awareness and Understanding
Many individuals and legal practitioners in Tanzania lack sufficient knowledge about ADR processes, their benefits, and how they operate. This lack of awareness leads to a preference for traditional litigation methods, which are often seen as more familiar and reliable.
Insufficient Training and Expertise
There is a shortage of trained mediators and arbitrators in Tanzania. The training of personnel on ADR techniques is often expensive and not widely conducted, resulting in a pool of practitioners who may not be adequately equipped to handle ADR cases effectively. This affects the quality of ADR services provided.
Cultural Attitudes Towards Dispute Resolution
Cultural perceptions of conflict and resolution can pose a barrier to the acceptance of ADR. In some communities, there is a strong belief in formal court processes, which are viewed as more authoritative. This can lead to reluctance in engaging in ADR methods, which are perceived as less formal or binding.
Legislative and Institutional Bottlenecks
While there are legal frameworks supporting ADR, implementation is often hampered by bureaucratic inefficiencies and a lack of institutional support. The enforcement of ADR agreements can also be problematic, as there may be insufficient legal backing to ensure compliance with mediated settlements.
Limited Resources
Many ADR programs operate with limited financial and logistical resources, which can restrict their reach and effectiveness. This is particularly evident in rural areas where access to ADR services is minimal.
Compulsory Nature of ADR
Although ADR is mandated for civil cases, the enforcement of this requirement can be inconsistent. Some courts may not fully adhere to the mandatory referral to ADR, leading to confusion and undermining the intended benefits of the system.
To enhance the effectiveness of ADR in Tanzania, it is essential to address these challenges through increased awareness campaigns, better training programs for practitioners, and strengthening the legal and institutional frameworks that support ADR processes. By doing so, ADR can become a more viable and accepted method of dispute resolution in the country.
What should people in Tanzania learn about ADR?
Understanding ADR Processes
It is important for people to have a basic understanding of the main types of ADR:
Negotiation: Direct discussions between parties to resolve disputes amicably.
Mediation: A neutral third party (mediator) facilitates discussions between parties to help them reach a mutually acceptable solution.
Arbitration: A private dispute resolution process where an arbitrator or panel of arbitrators makes a binding decision on the dispute.
Conciliation: Similar to mediation, but the neutral third party (conciliator) may offer opinions on the merits of the case to help parties reach a settlement.
Knowing the differences between these processes and when each may be appropriate can help people make informed choices.
Benefits of ADR
People should be aware of the key advantages of using ADR compared to going to court:
Cost-effectiveness: ADR is generally less expensive than litigation.
Time-efficiency: ADR processes are faster than going through the court system.
Flexibility: ADR allows parties to craft tailored solutions to their disputes.
Privacy: ADR proceedings are confidential, unlike court cases which are public.
Preservation of relationships: ADR helps maintain relationships between parties in ongoing interactions.
Understanding these benefits can motivate people to consider ADR as a viable option.
Accessing ADR Services
People should know how to access ADR services in their communities:
Community mediation centers: Many regions have local mediation centers that provide affordable services.
Legal aid organizations: Some legal aid providers offer ADR assistance, especially for indigent parties.
Private practitioners: Experienced mediators and arbitrators can be hired to handle disputes.
Court-annexed ADR: Many courts now have mandatory mediation programs before cases can proceed to trial.
Knowing where to find ADR services and how to engage them is crucial for utilizing these processes.
Enforcing ADR Agreements
People should understand that ADR agreements, especially mediated settlements, are legally binding and enforceable:
Mediated settlements: These are treated as contracts and can be enforced through the courts if a party breaches.
Arbitration awards: Arbitrators' decisions are final and binding, with very limited grounds for appeal.
Knowing that ADR outcomes have legal force can give parties confidence in the process and motivate them to comply with the agreements reached.
By educating People on the basics of ADR, its benefits, how to access services, and the legal enforceability of outcomes, communities can be empowered to resolve disputes more efficiently and amicably. This knowledge can lead to greater social harmony and access to justice for all.
What are some successful ADR case studies in Tanzania
Land Disputes in Bagamoyo District
A study by Alkard Machumu examined the use of ADR in resolving land disputes in Bagamoyo District, Tanzania. The key findings include:
ADR has been incorporated into Tanzania's land laws as an effective method for settling land disputes, reducing heavy caseloads in courts.
The legal framework for ADR in Tanzania, particularly in Bagamoyo District, promotes its use in land matters. However, there are some challenges in implementation.
Proper training of ADR practitioners is critical for its success. But lack of resources often limits training opportunities.
The study recommends reviewing Tanzania's legal framework to make ADR more effective in resolving land disputes, along with appropriate changes to the ADR legal framework.
Commercial Disputes Resolution
In the article "Commercial Disputes Resolution in Tanzania: Challenges and Prospects", the author examines several ADR success stories in commercial disputes:
Parties have reached mutual resolutions in the majority of mediation cases, avoiding further legal action and expenses.
Mediation enables parties to have full control over the outcome and settlement agreement.
ADR is utilized when there are adversarial situations and parties wish to resolve disputes privately without court litigation.
The article highlights how ADR has become an inherent component of Tanzania's legal system for commercial disputes, with its importance recognized by making it compulsory for law students.
Conclusion
These case studies demonstrate the growing acceptance and effectiveness of ADR in Tanzania, particularly in resolving land and commercial disputes. While challenges remain, such as lack of resources and inconsistent implementation, ADR is proving to be a valuable complement to the traditional court system. With continued refinement of the legal framework and increased training of practitioners, ADR can continue to provide efficient, cost-effective and mutually satisfactory dispute resolution in Tanzania.
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