Mediation is defined as a process by which a neutral third party called a mediator assists parties to a dispute to reach a voluntary settlement of their differences through a binding and enforceable agreement (Rule 2 of the Industrial and Labour Relations Act (Arbitration and Mediation Procedure) Rules, 2002). In Zambia, the definition of mediation in the law applies to court-annexed mediation, which is binding on the parties in the process, and the agreement is enforceable by law. (See Charles Mambwe v. Mulungushi Investment Limited (in liquidation) and Mpelembe Properties Limited (2016) ZMSC 203, paragraph 1333.) In the context of private mediation, mediation has not been defined in Zambian law but is generally known to be a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.

The role of a mediator in Zambia is not expressly set out, however, Rule 16 of the High Court Rules in setting out the purpose of referral to mediation essentially includes the role of the mediator. Under this provision, the mediator’s role is to assist the parties in reaching an agreement in good faith on a fair and efficient resolution or partial resolution of their dispute. It is generally understood that a mediator facilitates negotiation between disputing parties to enable them to come to an amicable settlement of the dispute.

Mediation differs from arbitration and litigation to the extent that the mediator is a neutral third party who does not make a decision on the final outcome of the issue in dispute between the parties. The mediator upholds the parties’ right to self-determination, although they may guide, suggest possible options, and help the parties generate a wide range of possibilities for the issues in contention. The final agreement is not binding. In Zambia, the exception to the non-binding nature of mediation is court-annexed mediation, where a mediated settlement agreement is akin to a judgment of the court or consent order. Rule 12 of the High Court Rules (Order XXXI of Statutory Instrument SI No.71 of 1997) expressly states that a mediation settlement shall have the same force and effect for all purposes as a judgment, order, or decision and be enforced in the same manner. Rule 14 of the same Rules goes on to state that no appeal shall lie against a registered mediated settlement. In the Zambian context, the final impact of a registered settlement is in essence the same as that of a judgment and an arbitration award.

Arbitration is defined as a process by which parties present their case using evidence to a neutral third party who renders a decision that is binding on the parties and enforceable (SI No. 26 of 2002). The process is similar to litigation, as the neutral party makes a final decision about the claims of the parties and determines the final outcome of the dispute. Arbitration and litigation differ from mediation in the manner in which the process occurs in the following ways:

• the final outcome of the dispute is determined by a neutral third party;
• the parties are required to give evidence and present their case before the neutral third party; and
• a reasoned decision must be given to the parties.

By contrast, the mediation process provides for the following:

• the parties in dispute determine the final outcome of the dispute through dialogue and subsequent consensus; and
• the process is dependent on the skill of the mediator in facilitating dialogue and agreement and maintaining the good faith and willingness of the parties to settle the dispute.

It is interesting to note that, in our context, where court-annexed mediation is used, the final outcome will be as binding as an arbitration award or judgment. Mediation in the private context is what is held to be the non-binding process referred to as mediation in other jurisdictions. Mediation is a confidential process in comparison to litigation, and this applies to court-annexed mediation as well. Despite the provisions of the law that make mediation binding if used in the context of the court process, arbitration is more widely used in the business environment on account of contractual arbitration clauses in both private and public contracts. The setting up of the Lusaka International Arbitration Centre (LIAC) in April 2024 and the promulgation of LIAC arbitration clauses for government contracts continue to entrench arbitration as the more favoured alternative dispute resolution (ADR) option in Zambia. The LIAC has indicated plans to introduce contractual clauses or multi-tier dispute resolution clauses that include mediation, but this is yet to be implemented.

The High Court Rules of the High Court Act, Chapter 27, of the Laws of Zambia were amended by SI No. 71 of 1997 to introduce court-annexed mediation into Zambian courts in 1997. These High Court Rules have been amended over the years by various SIs including:

• SI No. 69 of 1998;
• SI No. 29 of 1999;
• SI No. 27 of 2012; and
• SI No. 72 of 2018.

SI No. 26 of 2002 was passed on 19 April 2002 to provide for a mediation procedure in the Industrial and Labour Relations Court. This has since been superseded by the elevation of the Industrial and Labour Relations Court to a Division of the High Court; therefore, the High Court Rules now apply to this court as well. Mediation was also introduced into Zambia’s Subordinate Courts through SI No. 73 of 2018.

Zambia is engaging in activities to encourage the use of mediation. Because the Judiciary was, from inception, the custodian of mediation, past Chief Justices have been ardent supporters of mediation dating back to the early 2000s. Over the years, there have been initiatives towards the promotion of mediation because it is viewed as an effective way of dismantling the backlog of cases and pending judgments that have plagued the court system. This understanding led to the setting up of an Advisory Committee on Court-annexed Mediation and Delay Reduction in the year 2017 as well as the facilitation of mediation settlement weeks to promote mediation. For over two decades, the Judiciary partnered with the Chartered Institute of Arbitrators (CIArb) to train court-annexed mediators from a range of professional backgrounds. Between 2019 and 2023, the Judiciary partnered with Edwards Mediation Academy and the ADR Centre to retrain court-annexed mediators, judges and lawyers to encourage mediation. The Judiciary, which has traditionally been the custodian of mediation, holds mediation settlement weeks from time to time to encourage the use of mediation in matters that are pending before the courts. The Law Association of Zambia has, in the recent past, shown interest in revisiting the mediation agenda in conjunction with the LIAC and the CIArb. New institutions promoting mediation have begun to take root, such as iSettle Management Consultants and the Institute for Mediation Excellence, noting some growth in the area of mediation advancement. Zambia is currently engaging in a process of reviewing its ADR legislation to enact a more comprehensive ADR Act, with a portion of this process dedicated to mediation. The Ministry of Justice is also in the process of creating a technical working group to spearhead the drafting of a national policy on ADR which includes mediation as one of its key components.

On 26 February 2025 the Zambia Law Development Commission presented a report on the ADR Bill which will include arbitration and mediation provisions.

Courts are required to mandate parties to mediate in matters relating to custody, maintenance of children, and property settlement (Rule 4(4)(a) and (b) of the High Court Rules). In all other matters the law provides that courts mandate mediation at the scheduling conference before setting down a matter for trial, with three exceptions (Rule 4(1) of the High Court Rules). However, in practice, the courts generally use their discretion to apply the third exception, which places the determination on whether a matter is referred to mediation on the opinion of the judge. However, at the Industrial and Labour Relations Court, a division of the High Court, the practice has been for judges to make referrals as a first step to determining a dispute before it is referred to the trial for determination. This practice has led to labour matters forming the bulk of matters referred to mediation by the Zambian courts.

Rule 8(3) of the High Court Rules (SI No. 72 of 2018) enables the court to condemn a party who fails to attend mediation without reasonable cause to pay costs regardless of the outcome of the final matter in litigation. However, this provision is hardly used by judges, perhaps because its existence is not well known. An additional challenge is that information on a failed mediation is contained in the mediator’s report, which is filed within five days of a failed mediation but it is not clear whether any reliance is placed upon these reports or if they are properly reviewed by judges for the purposes of penalising parties for refusal to mediate or bad conduct at mediation proceedings.

Generally, mediation in Zambia is court-annexed and occurs after the filing of the court process by the law. Pre-litigation mediation has not yet taken root in the ADR landscape but is developing gradually. During court proceedings, judges are drivers of the referral to mediation holding the prerogative to make a referral before setting down a matter for trial. In previous rules of court, a referral to mediation could be made at any stage of proceedings by the court or at the request of parties and their lawyers. This is not stated expressly in more recent subordinate legislation. Pre-litigation mediation is driven by private parties and business entities with an interest in preserving personal and business relationships through an amicable settlement. Because private mediation is private and confidential in the circumstances that it takes place, this information is not known to the general public. Thus, the drivers of the mediation process tend to be:

• the courts;
• parties or lawyers who seek to attempt mediation; or
• private individuals and corporations who seek the privacy of the process, preservation of relationships, lower costs and quicker options to resolve disputes.

Mediation is most effective in the following situations:

• Court referrals. Where a judge explains clearly to the parties the mediation process and the likelihood of settlement, parties are more willing to engage in the process with a positive attitude.
• With well-trained mediators who can handle the process efficiently and facilitate negotiations between the parties. These mediators, who work well with lawyers and parties, tend to have higher rates of success in mediation processes.
• Family disputes. Where parties seek to preserve family relationships, they are more willing to mediate a dispute.
• Business relationships. Here, parties are mutually dependent on each other and may need to preserve the business relationship to save reputation, cut costs, and prevent delays in productivity due to conflicts that bring business to a standstill.
• Employment matters, which tend to yield higher rates of settlement in the Industrial and Labour Relations Court.
• Where parties seek to keep the nature of their dispute or relationship confidential without it reflecting in court records.

Order XXXI Rule 4(1) of the High Court Rules (SI No. 72 of 2018) provides that all disputes can be subject to mediation except constitutional matters, matters relating to the liberty of an individual, injunctions, and matters that a court does not believe to be appropriate for mediation. There being no exceptions relating to commercial fraud disputes, it is safe to assume that these can be mediated unless the court does not believe such cases to be appropriate for mediation.

For the most part, dispute resolution clauses contain arbitration and litigation provisions. Mediation is somewhat of a rarity in dispute resolution clauses; however, a few lawyers and institutions are beginning to move towards mandating an attempt at amicable settlement before the more coercive forms of dispute resolution.

Where a mediation clause appears in a contract it is not enforced in the same manner as an arbitration clause because the law has not yet made provision for courts to mandate parties to mediation where a contract provides. However, it is safe to infer that courts will uphold the contractual agreement of the parties based on the law of contract. Therefore, contractual mediation clauses should be enforceable by the court on the basis that the parties contracted to mediate. The Zambian courts have not yet received any claims to enforce a mediation clause for a private contract. In any event, the courts would likely make a referral to court-annexed mediation based on the existence of such a clause as opposed to private mediation processes. The Chief Justice’s Advisory Committee on Court-Annexed Mediation is currently reviewing an application by private players to amend the High Court Rules to permit the courts to make referrals to private mediators and recognise the resolution of such agreements as binding. A change to the law will significantly impact the use and enforceability of mediation clauses in contracts.

Court-annexed mediations are legally binding and are not open to appeal. On the other hand, private mediations are not legally binding. Parties seeking the clothing of mediation agreements with enforceability may be forced to commence court processes to achieve the following:

• to convert agreed-upon settlements into consent judgments and orders;
• to utilise the court-annexed mediation procedure to obtain a settlement that carries the force of a judgment.

Until the law is reviewed, private settlement agreements can only be enforced in the same manner that a contractual agreement event is enforced as these do not carry with them the binding nature of an arbitral award. There is some subsidiary and substantive legislation in the pipeline to enable the registration of private mediation settlements through the courts.

The CIArb (Zambia branch) has trained the majority of the court-annexed mediators and commercial mediators in Zambia. There is, however, a distinction between the court-annexed mediator training and the commercial mediator training. Court-annexed mediation training scaled down the hours and content over the years due to tight Judiciary budgets and reduced funding. As such, court-annexed mediators trained under previous Judiciary schemes may not be recognised as commercial mediators under the CIArb standards. It is therefore best to train in more comprehensive courses as these would be applicable for both court-annexed and commercial purposes. Because the Judiciary has been the custodian of mediation over the last 25 years they have engaged with and recognised institutions which include:

• the CIArb Zambia branch;
• the Edwards Mediation Academy (United States); and
• the ADR Centre (Italy) with International Mediation Institute-recognised accreditation.

The fact that these institutions have engaged with and have been recognised by the Judiciary of Zambia as reputable training institutions does not preclude persons trained in mediation by other reputable training institutions from becoming mediators. An application on the suitability of such persons would have to be considered by the Chief Justice’s Committee on Mediation and Delay Reduction for court-annexed mediators. Even though no set criteria to become a mediator have been established, High Court Rules require that one must show work experience of five years or more in a particular profession (Rule 5(1)). The Rules do not specify a specific profession but refer to a field of specialisation or experience. A requirement to show a particular field of specialisation and to appear on a list of trained and certified mediators held by the Judiciary is also set out in the High Court Rules (Rule 5(1) to (3)). These rules apply to court-annexed mediators, as there are currently no requirements and standards set out for private mediators in the law.

Court-annexed mediators are subject to the supervision of the Chief Justice’s Advisory Committee on Mediation and Delay Reduction. This covers fewer than 200 recorded mediators. At present, Zambia does not have a single governing body for all mediators. Mediation legislation, which is currently being drafted, envisages a governing body for mediators, but this is yet to become a reality.

The Judiciary of Zambia, as custodian of mediation, has been in the process of formulating an ethical code of conduct for mediators. This has existed in draft form for the past five years but is yet to be passed.

Court-annexed mediators are required to belong to a professional body before their applications. Therefore, while there is no general code of conduct for mediators specifically, they should be bound by some type of professional code within their profession.

Court-annexed mediation is very limited in the time allotted to its process as it spans only two hours and any extension to duration is at the discretion and good will of the mediator. The stages of mediation are therefore allotted as follows:

• Mediator’s opening statement.
• Joint meeting. (Generally, court-annexed mediators were trained to conduct only joint meetings until changes in training over the last five years introduced private meetings. This training was however only extended to 30 court-annexed mediators and, as such, the majority continue to conduct joint meetings throughout the process unless trained in newer techniques.)
• Joint negotiations and discussions.
• Private caucuses. (This only applies to a limited number of court-annexed mediators who have been retrained, however, the time constraints of court-annexed mediation may prevent mediators from engaging in all the stages of mediation.)
• Closing.

Private mediators go through several processes which include:

• a convening stage;
• an opening stage;
• joint meetings;
• private caucuses;
• negotiations; and
• closing.

Court-annexed mediation is an easy process to initiate, with specific time frames set out by the law. A party has five days to choose a mediator following a referral and the mediator has specific time frames to be followed.

Private mediation is equally easy to implement where the parties agree to the process. A possible obstacle could be who mediates when the parties cannot agree on who should mediate the matter. Institutional mediation could assist this barrier but is yet to be implemented by the private institutions offering mediation services.

Court-annexed mediation is dependent on the referral of a judge or magistrate. This may be of the court’s own volition or at the request of one of the parties. This means that if the court does not consider the matter appropriate for mediation, the court will make the final determination on whether a matter proceeds to mediation. Some courts are more mediation-friendly than others, and the likelihood of referral to mediation is therefore dependent on the court’s attitude towards mediation.

Mandatory mediation can be difficult because parties and lawyers come to court prepared for their day in court. A referral to mediation may infuriate the parties and cause them to shun the mediation process, all the while holding on to the desire to have their day in court. Mediation then becomes a formality to be endured rather than a process to be embraced on the path to effective dispute resolution.

Pre-litigation mediation is not widely used in Zambia, but some private individuals and corporations do engage in this process by simply agreeing to mediate and contacting a mediator. It is commonplace for one party to seek mediation while the other does not. The party seeking mediation may not want to reach out to the other party at the expense of appearing a weaker party in the bargaining process. The lack of institutional mediation is a barrier to the extent that an institution could act as a buffer for concerns by engaging the other disputant and inviting them to the mediation process.

The ripeness of the case for mediation is impacted by a lack of awareness about the process. Because mediation is not yet common in Zambia, the general situation is that one party may wish to mediate while the other may not even be aware of what mediation is. The mediator is then placed with the work of reaching out to the party and educating them on the process of mediation. It may take a few days to weeks to bring the other party to a place where they can meaningfully participate in the process. How the mediator factors cost in this process may affect the cost-effectiveness of mediation.

Court-annexed mediation is a victim of the challenges of the justice sector, which include:

• Poor funding of court mediation programmes.
• Lack of infrastructure for the conduct of mediations (court-annexed mediations are carried out in insufficient courtrooms, which are only available when judges are not conducting sittings).
• Poor remuneration of mediators (most mediators act voluntarily and cannot give large chunks of time to the mediation process as they are engaged in other professional activities).
• Part-time and independent mediators. Court-annexed mediators are independent mediators drawn from a pool of various professions who are not attached to the courts permanently. Independent mediators are therefore free agents and not obliged to mediate a specified number of cases within a specific time and can therefore mediate at their own convenience. This means that the pool of mediators is not consistent and more than 50% of court mediators will not mediate a court case for months, even years, despite appearing on the list of mediators. The number of mediators on the list does not, in practice, reflect the actual capacity of the court-annexed mediation program.

Although mediation was first introduced in Zambia over 25 years ago, mediation awareness has not trickled down to the general population to the extent hoped. The court system has made minimal use of mediation, with the largest sector that uses this mechanism being the employment sector. The legal community in Zambia has struggled to accept mediation on account of several misconceptions including:

• A lack of ADR training in law schools. ADR is offered in a handful of law schools in Zambia and, even then, is not compulsory. A large number of law graduates therefore enter legal practice with no awareness of mediation and their role in this process.
• There is a false perception that lawyers cannot make money through mediation because they lose billable hours due to the promptness of the process. Fee structures are built around litigation, therefore, no fee structures exist for mediation processes.
• Lawyers tend to feel disempowered by the process as most mediators are not trained to include lawyers and there has been a tug of war. Most mediators do not respect the lawyer in the process and the lawyer does not respect the mediator, creating a vicious cycle.
• Because mediation is less formal and is flexible, there is a misconception that mediation is an oversimplified process applicable only to the simplest of disputes, and many lawyers cannot even comprehend the use of mediation for contracts worth millions of dollars in mining, construction, and big business, among others. Lawyers respect rules, formality, precedent, and enforceability and because mediation appears to lack these components, it is considered lower in calibre and value than arbitration and litigation.
• Court-annexed mediation is shunned by lawyers because they are compelled to attend mediation by the court, and they tend to delay or deliberately sabotage the process with the intention of returning to litigation.
• Because mediation settlement agreements are not enforceable by law unless mediated under the court programme, private mediation is considered risky.
• Lawyers will only respect a process that appears in the statute books and one that is championed and respected by judges and leaders of the legal fraternity. Because judges, policymakers, and lawmakers are drawn from the same crop of lawyers that are prone to all these misconceptions, they do not promote its advancement.

Advantages:

• Mediation is a cheaper alternative to the court process in court-annexed mediation where mediators charge a minimal fee prescribed by the law. Where court referrals are successfully assigned to the right mediators and good outcomes are achieved, mediation decongests the court
• Mediation presents a benefit for private matters that need to be resolved promptly.
• Mediation is cost effective, speedy and has the added advantage of allowing parties to preserve personal and business relationships. The win-win nature of the mediation process assists both parties to leave the process feeling that they have walked away with some benefit to themselves or their business or interpersonal dispute.
• Mediation diminishes the risk of an adversarial process in cases where the parties cannot fully assess whether a matter will be determined in their favour. It is not always easy to assess which party was at fault in legal proceedings which are dependent on a balance of probabilities.
• Even in complicated matters where the issues may need to be litigated, mediation can help narrow the issues in dispute and assist parties to have a better understanding of each other’s case before proceeding to litigation or arbitration. This could reduce the arbitrator or court’s work in detangling issues in dispute and essentially save on time.
• Mediation could be especially beneficial to save small and medium businesses during turbulent economic times when litigation would result in one company losing and incurring heavy legal costs. Zambia, for instance, is experiencing economic challenges and countrywide power outages which has negatively affected small and medium businesses. Effective mediation allows a wider range of solutions for companies and individuals facing financial challenges due to unexpected economic fluctuations, power and climate crisis.

Disadvantages. The majority of the legal fraternity perceive mediation as an interference to court proceedings and therefore interfering with billable hours. Disputes resolved in shorter periods of time are seen as a direct threat to the lawyer’s income. Further, because mediation isn’t held in the same esteem as arbitration, it is considered to be of lower calibre and effect because it lacks enforceability. Another disadvantage for the legal fraternity is a sense that mediation disempowers the lawyer because it gives the party a more central role. Lawyers who are not trained in mediation advocacy struggle with the mediation process because they do not have the necessary skill to thrive in collaborative and co-operative dispute resolution processes. This fear makes it unlikely that lawyers will advise their clients to attempt the process. Court-annexed mediation has not received substantial investment or resources, which gives mixed outcomes for those involved and a poor success rate. Parties feel deprived of their day in court when they would rather appear before a judge and argue out a case. The lack of legal precedents set from mediated cases is seen as a disadvantage. Mediation is seen as more appropriate for family and employment disputes as opposed to a mechanism for resolution of complex commercial disputes. The general populace seem to view dispute resolution as carrying more weight with forceful authoritative decisions as opposed to cooperative and collaborative decision-making processes.

In situations where private mediation is carried out, mediations can take place remotely by agreement of the parties. The informality of the process and party autonomy allow the process to create its own rules, including the mode in which it should be conducted.

The rate of mediation has not increased significantly since 2020 because the majority of litigants and legal practitioners simply waited for the lifting of COVID-19 restrictions to return to litigation. In stark contrast, however, arbitration has risen.

The lack of development in mediation in our jurisdiction has inhibited the collection of data on the use of AI in this process.