This paper intends to discuss the challenges facing of alternative dispute resolutions in Tanzania. In doing so the work will explore the meaning of Alternative Dispute Resolution, brief history of Alternative Dispute Resolution, thereafter modes of alternative dispute resolution currently used in Tanzania, and lastly I’m going to discuss the challenges facing alternative dispute resolution (ADR) in Tanzania.
It is unarguable fact that, disputes are one amongst the issues which are likely to appear where there are more than one individual occupying a certain geographical location. Basically, conflicts arise out of a misunderstanding between two or more individuals. Nevertheless, the existence of conflicts or disputes presupposes the existence of methods of settling them, the United Republic of Tanzania disciples the common law legal system which is believed to be the legacy of the British colonialists, Generally, the common law legal system is featured by adversarial mode of disputes settlement. The common way of settling dispute under this mode is by way of court litigation or adjudication. The end product of the system is in the form of winner takes all and loser loses all.
However, this justifies the arguments raised by peoples that, the adversarial mode of dispute settlement spices enmity amongst the disputants rather than shipping them to the safe coast. Actually, this is one amongst the reasons for the adoption of the Alternative Disputes Resolutions (hereinafter referred to as ADR) as another form of settling disputes. ADR encourages disputants to settle their disputes out of the court. There are several modes under ADR including but limited to mediation, arbitration, negotiation and early neutral case evaluation. But frankly speaking, methods introduced under ADR were applicable during the pre-colonial era in Tanzania.
Table of Contents
1.0 INTRODUCTION
1.1 MEANING OF DISPUTE SETTLEMENT
1.2 MEANING OF ALTERNATIVE DISPUTE RESOLUTION
2.0 BRIEF HISTORY OF ALTERNATIVE DISPUTE RESOLUTION
3.0 MODES OF ALTERNATIVE DISPUTE RESOLUTION USED IN TANZANIA
3.1 MEDIATION
3.1.1 FACTOR SHOWS THAT WHY MEDIATION FAILED ?
3.1.01 Poor negotiating skills of the parties
3.1.02 Unrealistic expectations on the side of the parties
3.1.03 Revengeful character of the parties
3.1.04 Failure to communicate the interests effectively by the mediator
3.1.05 Failure to generate options by the mediator
3.1.06 Interference or negative effect by a third party
3.1.07 Poor skills of mediators
3.2 CONCILIATION
3.3 ARBITRATION
3.3.1 Arbitration Agreement
3.4 NEGOTIATION
3.5 EARLY NEUTRAL CASE EVALUATION
4.0 CHALLENGES FACING ALTERNATIVE DISPUTE RESOLUTION (ADR) IN TANZANIA
4.1 Lack of legal knowledge and training in conducting mediation and arbitration is evident in a decision by the Commission
4.2 Absence of International Centre for ADR mechanism in Tanzania
4.3 Lack of awareness on existence of Alternative Dispute Resolution
4.4 Inadequacy Experience with Enforcement of Foreign Awards by the Court
4.5 Delay of cases and Court intervention in arbitration
4.6 Lack of seriousness on the part of the judiciary
4.8 Imbalance of Power between the Parties
4.9 Shortage of effective Dispute Resolution techniques into the mainstream
4.10 The use of the right to review to get justice is being exploited
5.0 ADVANTAGES OF ALTERNATIVE DISPUTES RESOLUTION
5.1 Alternative Disputes Resolution is speedy
5.2 Alternative disputes resolution gives room to parties to arrange all things concerning their case
5.3 Alternative Disputes Resolution
5.4 Alternative disputes resolution maintains confidentiality
5.5 Alternative disputes resolution maintain relation
5.6 Alternative disputes resolution prevents future disputes
6.0 CONCLUSION
Research Objectives and Topics
This work examines the implementation and effectiveness of Alternative Dispute Resolution (ADR) mechanisms within the Tanzanian legal system, specifically investigating the challenges that hinder their success in facilitating efficient and affordable dispute resolution.
- The historical evolution and current adaptation of ADR within the Tanzanian judicial framework.
- An analysis of primary ADR methods including mediation, conciliation, arbitration, and negotiation.
- Identification of systemic legal and administrative challenges, such as lack of training and court intervention.
- Evaluation of the benefits of ADR, focusing on speed, confidentiality, and preservation of relationships.
Excerpts from the Book
3.4.1.2 People
Another element of integrative strategies involves People. In Getting to Yes, Fisher and Ury argue that parties in a dispute often forget that the other side consists of people who, just like themselves, are subject to the human frailties such as emotions, potentials for misunderstandings and mistaken assumptions.
Another rule for the principled negotiator is therefore to separate the people from the problem. This means finding a way for solving a problem without getting distracted by personal elements, and coming to an agreement in a manner that will preserve the relationship. The better the relationship, the more cooperation each side will get from the other, the more information can be shared comfortably, and the higher the prospects for arriving at a win- win solution. To help build relationships, Fisher and Ury recommend considering the use of tactics that can help negotiators to get to know the other party.
This may include finding ways to meet informally, arriving early to chat or staying on after formal negotiations end see negative emotions. Negotiators should also remain aware of important tactics and considerations that help negotiators to feel as though they can emerge from the negotiation with self-respect, and the good opinion of others.
Chapter Summaries
1.0 INTRODUCTION: Provides an overview of the adversarial common law system in Tanzania and justifies the adoption of ADR as a more consensual and efficient dispute settlement alternative.
2.0 BRIEF HISTORY OF ALTERNATIVE DISPUTE RESOLUTION: Outlines the historical context of the adversarial system retained from colonial rule and the subsequent statutory integration of ADR into the Tanzanian civil justice process.
3.0 MODES OF ALTERNATIVE DISPUTE RESOLUTION USED IN TANZANIA: Details the primary ADR mechanisms employed in the country, including the procedural and structural aspects of mediation, conciliation, arbitration, negotiation, and early neutral case evaluation.
4.0 CHALLENGES FACING ALTERNATIVE DISPUTE RESOLUTION (ADR) IN TANZANIA: Examines significant systemic hurdles such as the lack of specialized legal training, institutional weaknesses, and improper court interventions that constrain the efficiency of ADR.
5.0 ADVANTAGES OF ALTERNATIVE DISPUTES RESOLUTION: Highlights the practical benefits of ADR adoption, focusing on speed, cost-effectiveness, confidentiality, and the facilitation of long-term amicable relationships between disputing parties.
6.0 CONCLUSION: Synthesizes the need for appropriate initiatives to overcome existing administrative and legal obstacles to ensure that ADR fulfills its potential to deliver accessible justice.
Keywords
Alternative Dispute Resolution, ADR, Tanzania, Mediation, Arbitration, Conciliation, Negotiation, Legal System, Civil Procedure Code, Justice Delivery, Conflict Resolution, Court Annexed Mediation, Enforcement, Legal Training, Dispute Settlement
Frequently Asked Questions
What is the core focus of this research?
This work explores the modes and challenges of Alternative Dispute Resolution (ADR) within the Tanzanian legal environment, aiming to assess its effectiveness as a complement to traditional court litigation.
What are the primary modes of ADR covered in the text?
The study covers mediation, conciliation, arbitration, negotiation, and early neutral case evaluation as the primary ADR techniques utilized in Tanzania.
What is the main objective of the author?
The primary goal is to identify why, despite the legislative adoption of ADR, the system has not substantially resulted in the rapid and cost-effective disposal of civil cases in Tanzania.
Which legal system does Tanzania follow?
Tanzania follows the common law system, traditionally characterized by an adversarial mode of dispute settlement, which often leads to "winner-takes-all" outcomes.
What challenges does ADR face in Tanzania?
Major challenges include a lack of legal knowledge and training among practitioners, absence of specialized international centers, procedural delays, and inadequate institutional support.
How is the success of ADR in Tanzania measured?
The success is measured by the ability of ADR to provide an expeditious, affordable, and consensual resolution compared to the lengthy and expensive court-based litigation process.
What specifically does the author note about mediation failures?
The work highlights that mediation often fails due to poor negotiation skills, unrealistic expectations of parties, the revengeful nature of disputants, and the lack of effective options generated by mediators.
How does the author suggest the judiciary interacts with ADR?
The author argues that the judiciary acts as a challenge when it fails to show seriousness in supporting ADR, such as failing to apply proper record-keeping or when court intervention renders the ADR process overly legalistic.
What is the role of BATNA in the negotiation section?
BATNA (Best Alternative to a Negotiated Agreement) is presented as a crucial analytical tool for negotiators to maintain flexibility and protect themselves from accepting unfavorable settlement outcomes.
- Arbeit zitieren
- Datius Didace (Autor:in), 2022, Alternative Disputes Resolution in Tanzania. Modes and Challenges, München, GRIN Verlag, https://www.grin.com/document/1267939
