CAVENDISH UNIVERSITY ZAMBIA
ASSIGNMENT BRIEF AND FEEDBACK FORM
STUDENT NUMBER: _ 102-092 ___________
INTAKE
JAN 2024
LECTURER: ETHEL MASUMBU
ADR
SUBJECT:
ASSIGNMENT NO. 1
DATE HANDED OUT: /02/2024
DATE DUE IN: 7/03/2024
DAY/EVE/DL Distance Learning
ASSIGNMENT BRIEF
GIVEN SHOULD BE IN THIS BOX
1. WHAT OBSTACLES ONE MAY ENCOUNTER IN CARRYING OUT MEDIATION
AND
2. WHAT TACTICS AND APPROACHES MIGHT BE EFFECTIVE IN OVERCOMING
THESE BARRIERS
STUDENT INSTRUCTIONS:
1. This form must be attached to the front of your assignment
2. The assignment must be handed in without fail by the submission date (see assessment
schedule for your course)
3. Ensure that the submission form is date stamped by the reception staff when you hand it in
4. Late submission will not be entertained unless with prior agreement with the subject tutor
5. All assessable assignments must be word processed
ASSIGNMENT GUIDANCE
This assignment is intended to assess the student’s knowledge in all of the following areas.
However, greater emphasis should be given to those items marked with a
(Tutor: - please tick as applicable)
ASSESSABLE SKILLS Please Tick.
Good and adequate interpretation of the questions
Knowledge and application of the relevant theories
Use of relevant and practical examples to back up theories
Ability to transfer and relate subject topics to each other
Application or use of appropriate models
Evidence of library research
Knowledge of theories
Written Business English communication skills
Use of visual (graphs) communications
Self-Assessed ‘time management’
Evidence of field research
(Administration only*)
LECTURERS FEEDBACK:
Introduction
Alternative Dispute Resolution is just emerging in Zambia as one form that can be used to resolve
disputes according to the Constitution (Amendment) Act no. 2 of 2016. provides under article 118.
(2)1. Disputes or conflicts are a common occurrence in everyday life. Disputes or conflicts may
lead to devastating disasters if not carefully handled or if the may remain unresolved for a long
time. This is for the reason why courts and alternative dispute resolution (ADR) were introduced to
carter for such. With that explained, alternative disputes resolution as the wording suggest, is an
alternative method or way of resolving disputes without the dispute parties going into full trial or
litigation.2 There are however a number of factors concerning parties to a dispute that may
impede the process of resolution via ADR. As such, Mediation is another type of Alternative
Dispute Resolution which parties can use to resolute court disputes. In short, Mediation is the
process in which a neutral third party helps the parties to reach mutually acceptable resolution of
some or all of the issue in dispute, and the mediator’s role is defined as establishing ground rule
according to Stulberg, 19813. This type of resolution is also provided for by the Zambian High
Court Act under order 30 rules 4 and under order 43 rule 17 of the Subordinate Court Act thereby
court annexed so as to be binding. With reference to case law where possible, this essay identifies
and explains the obstacles one may encounter in carrying out mediation, tactics and approaches
that might be effective in overcoming these barriers.
As afore-stated, mediation is an informal procedure in which a neutral intermediary, the mediator,
assists the parties in reaching a settlement of the dispute according to Bercovitch and Jackson
(2001:60). Henceforth, the neutral intermediary referred to as mediator is chosen by a parties, as
such, proceeding are determined by the parties and the mediator. Mediation procedure and
nationality of the mediator can be neutral to law, language and institutional culture of the parties, in
this respect with the case at hand of Microsoft, the judge sitting for that matter appointed Judge
Richard Posner.
Mediation depends upon the commitment of the disputants to solve their own problems. The
mediator, also known as a facilitator, never imposes a decision upon the parties. Rather, the
1
The Constitution (Amendment) Act no. 2 of 2016 article 118. (2)
2
Nycourts.GOV, ‘’What id ADR?’, available at https://ww2.nycourts.gov/ip/adr/What_is_ADR.shtml#:~:text=Alternative%20dispute%2oresolution
%20(ADR)%20refers,stressful%20than%20traditional%20court2%20proceedings, accessed on 5 April 2022
3
mediator's job is to keep the parties talking and to help move them through the more difficult
points of contention. To do this, the mediator typically takes the parties through five stages.
First, the mediator gets the parties to agree on procedural matters, such as by stating that they are
participating in the mediation voluntarily, setting the time and place for future sessions, and
executing a formal confidentiality agreement according to Grimsley 4. One valuable aspect of this
stage is that the parties, who often have been unable to agree on anything, begin a pattern of saying
yes.
Secondly, the parties exchange initial positions, not by way of lecturing the mediator but in a face-
to-face exchange with each other. Often, this is the first time each party hears the other's complete
and uninterrupted version according to The United States Institute of Peace (USIP 5. The parties
may begin to see that the story has two sides and that it may not be so unreasonable to compromise
their initial positions.
Third, if the parties have agreed to what is called a caucusing procedure, the mediator meets with
each side separately in a series of confidential, private meetings and begins exploring settlement
alternatives, perhaps by engaging the parties in some "reality testing" of their initial proposals. This
process, sometimes called shuttle diplomacy, often uncovers areas of flexibility that the parties
could not see or would have been uncomfortable putting forward officially.
Fourth, when the gap between the parties begins to close, the mediator may carry offers and
counteroffers back and forth between them, or the parties may elect to return to a joint session to
exchange their offers.
Finally, when the parties agree upon the broad terms of a settlement, they formally reaffirm their
understanding of that settlement, complete the final details, and sign a settlement agreement.
A. OBSTACLES ONE MAY ENCOUNTER IN CARRYING OUT MEDIATION
As earlier alluded, Mediation is a process that can be applied to various types of conflict; either
social, economic or political conflicts. Individuals, states, intra and interstates conflicts alike
4
Shawn Grimsley, “Arbitrator: Definition, Role and Qualifications”, Study.com, 23 September 2015, available at
https://study.co/academy/lesson/arbitrator-definition-role-qualifications.html accessed on 3/6/2024
5
The United States Institute of Peace (USIP)
according to Bergmann et al., 20186. A decision a mediator might make about process at the
beginning of a session have direct influence over how the conflict is likely to unfold at that
moment and throughout the entire session according to Folger7, 2001, p. 57. However, as
aforestated mediation can face obstacles which may hinder the same to be carried our efficiently in
particular with U.S. v. Microsoft8. Below are the few obstacles that one may encounter whilst
carrying our mediation.
1. Misunderstandings9: Parties in conflict often misunderstand each other's intentions and
messages and make negative assumptions about the other side. In the case of USA vs.
Microsoft10, the defendant are of the view that they are not monopolizing the web browser
market for windows, primarily through the legal and technical restriction it put on the
abilities of PC Manufacturers (oems) and users to uninstall internet explorer and use other
programs such as Netscape and Java , however, the state is of the contrary view. This may
be an issue since both parties are refusing to objectively view each other’s point of position.
2. Distrust11 is the confident expectation that another individual's motives, intentions, and
behaviors are sinister and harmful to one's own interests. From the facts USA vs.
Microsoft12it is clear from the onset that the Defendant do not trust the USA government
with its intellectual property herein hence the same can will stimulate conflict and must of
the mediation will not be followed through.
3. Power Imbalance: Microsoft is a powerful entity which at time was allegedly accused of
using illegal tact tics to promote its Windows Brower against its competitors. As such,
being a company of means and USA being the government, both parties may use tools at its
disposal so to either frustrate mediation which may lead to mediation being terminated as
no compromise is being met by both parties in particular the USA government may bury
6
Bercovitch, J. and Jackson, R. (2001) ‘Negotiation or mediation?: An exploration of factors affecting the choice of conflict management in
international conflict’, Negotiation Journal, 17(1), pp. 59–77. doi: 10.1023/A:1010920107948
7
Folger, 2001, p. 57.
8
9
https://www.beyondintractability.org/essay/misunderstandings
10
USA vs. Microsoft, 2001
11
https://www.beyondintractability.org/essay/distrust
12
USA vs. Microsoft, 2001
Microsoft and drag the mediation process for as long as they like whilst the other party may
lose business and ligation costs.13
4. Scale of balance- The appointed mediator is Judge Posner a renowned scholar in the field of
law and economics, and has argued that the law should be shaped with careful attention to
economic forces, in particular whether legal rules serve to promote a vibrant free market
economy. Microsoft may allege that Judge Posner is biased as he is a well-known scholar
on the issue that is being litigated to. This was seen in Local 808, Building Maintenance,
Service and Railroad Workers vs. National Mediation Board, the District of Columbia
Circuit Court of Appeals reaffirmed and extended its earlier praise and deference for the
mediation process. The court held that mediation is the antithesis of justiciability.
5. Hidden Agendas14: If one or both parties have hidden agendas or ulterior motives, it can
complicate the mediation process and prevent the parties from reaching a mutually
acceptable agreement. In respect of the matter at hand USA vs. Microsoft, either party may
feel that the mediation was not entered in in good faith e.t.c one may use the information to
test the strength and weakness of the other party.
6. Resistance from Parties15: One of the main obstacles in mediation is when one or both
parties are resistant to the process or unwilling to engage in meaningful dialogue. From the
facts, Microsoft are not open to be competing in a vibrant free economic market, they
express that their golden has paid us hence they may not be open to change for there is fear
of the un known.
13
Adams, S., & Brownsword, R. (Eds.). (2001). Research Handbook on Legal Dissonance and the Globalizing Neo-Liberal Normative Order .
Edward Elgar Publishing. (APA).
14
Adams, S., & Brownsword, R. (Eds.). (2001). Research Handbook on Legal Dissonance and the Globalizing Neo-Liberal Normative Order.
Edward Elgar Publishing. (APA).
15
https://www.beyondintractability.org/essay/resistancetochange accessed on 3/7/2024
b. TACTICS AND APPROACHES MIGHT BE EFFECTIVE IN OVERCOMING THESE
BARRIERS.
As much as features of mediation are so appealing, it has not been so successful in some situations
like South Sudan’s and the Sudan’s according to according to Alier 16. Below are the tactics and
approaches the Judge can use to overcome barriers in the case of USA vs. Microsoft.
16
Alier, A. 1990, Southern Sudan: Too Many Agreements Dishonored, Ithaca Press, Exeter
1. Building trust- encourage participants to build trust among themselves and with the
mediation. This can be done by creating a safe and neutral environment where all parties
feel hear and respected17. People will not disclose personal needs, strategies, and
information if they feel it might be used against them 18From the onset on the above matter,
the mediator needs to lay a path of building trust amongst themselves so as to achieve the
desire results. Without trust, parties may shun to participate in mediation process. For
example during the South African apartheid post era, Bishop Tutu and others had to build
trust in order to mediate the forgiveness which was much needed for the country to move
on in the 1980’s.19
2. Improving communication, facilitate open and honest communication between the parties.
This can be achieved by using active listening techniques, asking open –ended questions,
and encouraging participants to share their perspectives. For example, there was an
outbreak of covid and there were religious group who were against the antidote which was
being administered20, representatives from different sectors were gathered through a
mediation process in which government official were listening with keen interest on the
different perspectives on the issue at hand. This is being emphasized in In re Joint E. and S.
Dists. Asbestos Litig., 737 F. Supp. 735, 739 (E. and S.D.N.Y. 1990).
3. Maintaining Confidentiality: Confidentiality is crucial in fostering an environment of trust
and promoting open communication according along Brown 21. 22Mediators should ensure
that all discussions and information shared during mediation sessions are confidential
17
https://www.beyondintractability.org/essay/misunderstandings-Knowledge base and conflict fundamental accessed at 3/5/2024 at 08:30pm by
Heidi Burgess
18
See generally Rempel and Holmes, How Do ! Trust Thee?, PsYcHoLOGY TODAY, Feb. 1986,
19
https://www.accord.org.za/ajcr-issues/mediation-and-conflict-resolution-in-south-and-southern-africa/ by Charles Nupen accessed on 3/7/2024
20
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8612821/ Curtailing Covid-19 on a dollar-a-day in Malawi: Role of community leadership for
shaping public health and economic responses to the pandemic by Hans-Peter Kohler accessed on 3/07/2024
21
Kent. L. Brown, (1991) Confidentiality in Mediation: Status and Implications
22
SPECIAL COMM. ON DLspuTE REsOLUoN, PUBLIC SERVICES Div. AMERICAN BAR ASS'N, ALTERNATIVE DispurE RESOUTIoN:
MEDIATION AND THE LAW: WILL REASON PREVAIL? 41 (eds. Ray, Kestner, Freedman, and Clare Aug. 9, 1983) (panel discussion series,
topic 3-1983) [hereinafter MEDIATION)
unless explicitly agreed upon otherwise. In re Joint E. and S. Dists. Asbestos Litig., (E. and
S.D.N.Y. 1990)23, a federal district court in New York noted that for mediation to be
effective parties must disclose their private views, needs, and future tactics. They will only
be willing to do this if they can be assured that these confidential communications will not
later be used against them.24 In addressing such an assurance, the District of Columbia
Circuit Court of Appeals was asked by a labor group to oust the National Mediation Board's
jurisdiction over a labor dispute thus paving the way for arbitration or a strike. The court
held that it would not require the mediator to testify as to his reasons for refusing to
discontinue mediation
4. Managing External Interference25: Mediators should be vigilant to prevent external
interference from influencing the mediation process. They should establish ground rules
and maintain the autonomy of the parties, discouraging any attempts at outside pressure or
manipulation.
5. Flexibility and Patience26: Mediation is a dynamic process, and mediators should be flexible
and patient. They should adapt their approach as needed, provide sufficient time for
resolution, and be persistent in guiding parties towards finding common ground
CONCLUSION
Mediation is a way to solve a dispute without having to resort to court procedure which sometimes
could turned out to be rigid, formal and time consuming especially when it needed a lot of paperwork
and the possibility of adjournment which could consume years. Besides that, unlike in court,
mediator as a third impartial party did not acted as a judge who decides on the resolution however,
23
In re Joint E. and S. Dists. Asbestos Litig., 737 F. Supp. 735, 739 (E. and S.D.N.Y. 1990)
24
i.b.d
25
SPECIAL COMM. ON DLspuTE REsOLUoN, PUBLIC SERVICES Div. AMERICAN BAR ASS'N, ALTERNATIVE DispurE RESOUTIoN:
MEDIATION AND THE LAW: WILL REASON PREVAIL? 41 (eds. Ray, Kestner, Freedman, and Clare Aug. 9, 1983) (panel discussion series,
topic 3-1983) [hereinafter MEDIATION
26
SPECIAL COMM. ON DLspuTE REsOLUoN, PUBLIC SERVICES Div. AMERICAN BAR ASS'N, ALTERNATIVE DispurE RESOUTIoN:
MEDIATION AND THE LAW: WILL REASON PREVAIL? 41 (eds. Ray, Kestner, Freedman, and Clare Aug. 9, 1983) (panel discussion series,
topic 3-1983) [hereinafter MEDIATION
the mediator will help the parties to explore the needs and issue which before preventing them from
achieving a mutual resolution and settlement. There may be obstacles which are ignited by lack of
trust, however, the same can be overcome by building trust and handling external forces.
REFERENCES
The Constitution (Amendment) Act no. 2 of 2016 article 118. (2).
The Industrial Relations Court (Arbitration and Mediation Procedure) Rules, 2002.
The American Uniform Mediation Act under Section 2.
BOOKS
Alier, A. 1990, Southern Sudan: Too Many Agreements Dishonored, Ithaca Press,
Exeter
Kent. L. Brown, (1991) Confidentiality in Mediation: Status and Implications
Adams, S., & Brownsword, R. (Eds.). (2001). Research Handbook on Legal Dissonance and the
Globalizing Neo-Liberal Normative Order. Edward Elgar Publishing. (APA).
Bercovitch, J. and Jackson, R. (2001) ‘Negotiation or mediation?: An exploration of factors
affecting the choice of conflict management in international conflict’, Negotiation Journal, 17(1),
pp. 59–77. doi: 10.1023/A:1010920107948
The United States Institute of Peace (USIP)
Shawn Grimsley, “Arbitrator: Definition, Role and Qualifications”, Study.com, 23 September
2015, available at https://study.co/academy/lesson/arbitrator-definition-role-qualifications.html
accessed on 3/6/2024
CASE LAW
In re Joint E. and S. Dists. Asbestos Litig., 737 F. Supp. 735, 739 (E. and S.D.N.Y.
1990)
Building Maintenance, Service and Railroad Workers vs. National Mediation
Board,
USA vs. Microsoft, 2001
https://www.beyondintractability.org/essay/misunderstandings-Knowledge base and
conflict fundamental accessed at 3/5/2024 at 08:30pm by Heidi Burgess
https://www.beyondintractability.org/essay/misunderstandings-Knowledge base and conflict
fundamental accessed at 3/5/2024 at 08:30pm by Heidi Burgess
https://www.accord.org.za/ajcr-issues/mediation-and-conflict-resolution-in-south-and-southern-
africa/ by Charles Nupen accessed on 3/7/2024
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8612821/ Curtailing Covid-19 on a
dollar-a-day in Malawi: Role of community leadership for shaping public health and
economic responses to the pandemic by Hans-Peter Kohler accessed on 3/07/2024
