Alternative Dispute Resolution - Mediation
INTRODUCTION
In
the case of Charles Mambwe and Others vs. Mulungushi Investments Limited and
Another (Appeal 27 of 2014), the Supreme Court for Zambia considered a
critical issue in employment law: whether a mediation settlement order can be
appealed or reviewed by a court. This landmark judgment, delivered on September
9, 2016, has had significant implications for the enforcement of mediation
settlement orders and the role of courts in resolving disputes. In this case
review, I will examine the facts, legal arguments, and decision in Charles
Mambwe and Others vs. Mulungushi Investments Limited and Another, and explore
its impact on the development of mediation in Zambia.
FACTS
Charles
Mambwe, a former employee of Mulungushi Village Resort, was suing his former
employer for breach of contract and wrongful termination. Mambwe had been
employed as a senior manager at the resort, but was dismissed without notice or
payment in lieu of notice. He alleged that his dismissal was unfair and
violated the terms of his employment contract, which included a clause
requiring the resort to provide him with a certain period of notice before
termination. Before filing the lawsuit, the parties had attempted mediation to
resolve their dispute, but the mediation was unsuccessful. During the
mediation, Mambwe had offered to settle the matter for a certain amount, which
the resort rejected. The resort argued that Mambwe's dismissal was justified
due to his poor performance and misconduct, and that they had followed the
proper procedures according to the employment contract. Mambwe claimed damages
for breach of contract and sought an order for reinstatement or payment in lieu
of notice.
HOLDING
The court noted that while Mambwe had made a
settlement offer during mediation, the resort had rejected it, and therefore
the offer could not be considered a binding contract. The court further held
that the mediation proceedings were confidential and could not be used as
evidence in the lawsuit, except to show that the parties had attempted to
resolve their dispute through mediation. The court's ruling on the mediation
issue emphasized the importance of confidentiality in mediation proceedings and
the need for parties to carefully consider the terms of any settlement
agreement before signing and also held that the mediation settlement order was
final and binding, and could not be appealed or reviewed. The court also found
that the Deputy Registrar erred in proceeding with the assessment, as the
mediation settlement order had already settled the matter.
IMPLICATION AND
APPLICATION
1. The
case provides a definition for court annexed mediation, the court stated that
court annexed mediation is a process by which a trial court refers the parties
to a neutral third party called a mediator, to help them resolve their dispute.
And also stated that the mediation in the high court and the industrial
relations court is court annexed mediation meaning it is part of the judicial
system this was affirmed by the case of Bank of Zambia v Richard nyambe (2005).
2. The
case also provides the function of the mediator, the court stated that the
mediator plays a facilitative role by merely providing a forum for the parties
to explore options for settling their disputes.
3. It’s
worth noting the case affirms that mediation is party driven and as such the
parties structure the agreement that they finally come up with.
4. The
case also affirms that court annexed mediation is binding, this is affirmed
also by Order 31 of the high court rules which compel a party to attend
before a mediator and any settlement reached is binding upon the parties and
final, no appeal lies against such settlement and to this, rule 14 states that no
appeal shall lie against a registered mediated settlement.
5. The
case also affirms that a mediation settlement is not subject to interpretation
or review nor can the proceedings from which it arises be re-opened.
6. The
case affirms the rationale for court annexed mediation that it helps decongest
the courts there by reducing the work load on judges in the high court.
7. The
case affirms that the court can only assume jurisdiction where mediation fails,
pursuant to order 31 rule 11 of the high court.
CONCLUSION
In
conclusion, the Supreme Court's decision in Charles Mambwe and Others vs.
Mulungushi Investments Limited and Another highlights the finality of mediation
settlement orders and the importance of understanding the consequences of
participating in mediation. The decision also underscores the role of the labor
Commissioner in resolving employment disputes and the need for parties to
carefully consider the terms of a mediation settlement before agreeing to it.
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Bringing the Law to Your Comfort)
About the Authors:
Kachana Katazo is a third year student at the University of Zambia and serving as the Projects Manager of Legal Aid Initiative.