The Federal Supreme Court of Ethiopia issued a directive paving the way for court-annexed mediation, one of the deficits in the Ethiopian legal system, especially relating to commercial disputes. Court-annexed mediation is a voluntary process conducted under the auspices of the court for settlement of disputes assisted by mediators recognized by the court.
The directive, issued on December 17, 2021, indicated that resolving civil disputes among litigants through consensus would ease pressure on courts and sustain peaceful relationships between disputants.
The directive will be applicable to cases that are not being heard by the court. However, disputants who want to resolve their disputes through negotiations can take their cases for a resolution under this scheme.
Unless the mediators appointed by the court are employees of the court, any costs of the mediation process as well as payment for mediators will be shared between the litigants, unless they agree otherwise.
In an event of termination of the process without an agreement, mediators will not get any payment. However, mediators will get per Diem upon the court’s decision, if the process took a longer time than anticipated. Nevertheless, if the process was halted as a result of a disciplinary issue with the mediators or lack of proper skills to conduct the mediation, no payments will be made.
For cases whose mediation cannot be valued in money, mediators will get paid 2,000 birr on the first appointment. Except for family related cases which pay 1,000 birr per case, mediators will get 1,500 birr for sessions from the second appointment and thereafter. For issues of monetary value, disputants pay mediation charges ranging from one percent to 0.005 percent for values ranging from 50,000 to 100 million birr and above in 12 categories.
“Since it is the decision of an individual to go to court and people decide the means of resolution for similar cases, the new directive allows people to stop and think before entering into court litigations,” said Tamerat Kidanemariam, a legal consultant and attorney at law. This, according to him, gives the chance to maintain good relations between persons. Furthermore, it creates a favorable environment for commercial activities.
“There are winners and losers in a courtroom. But mediation allows for a win-win outcome for both sides,” Tamerat told The Reporter.
Such alternative dispute resolution mechanisms aid good relationships within the society, eases the courts burden and time, saves the country’s money, and gives a chance for a speedy but fair justice, he added.
In addition, Tamerat explained that the directive synchronized the court process with the court-annexed mediation as the court decides whether the case should go to mediation or not. It also takes back its arbiter role if and when mediations fail.
Nonetheless, the expert is also of the view that it might elongate the time taken to resolve issues if mediations end without an agreement and court hearings proceed. However, it would be a gain for mediators if they manage to resolve some issues tabled for mediation.
The directive also provides that, any admission or information given during mediations cannot be presented to a court as evidence, and even if presented, the judge has the discretion to reject it.
According to USAID’s 2019 Feteh activity quarterly report in Ethiopia, one of the challenges of commercial disputes is the lack of or fully unutilized court-annexed mediation facility.
Similarly, a research published in 2008 titled “Alternative Commercial Dispute Resolution Mechanisms in Addis Ababa: the Case of Merkato, conducted by Mintiwab Zelelew and Mellese Madda, recommended court-annexed mediation facilities in Ethiopia to “reform the legal and practical settings surrounding alternative dispute settlement of commercial cases.”
Explaining how this mediation process differs from arbitration tribunals, Tamerat said that the former is conducted by court appointed mediators, while arbitration is done by arbitrators appointed or chosen by the disputants. Also, decisions of arbitrators are binding, which is not the case with a court-annexed mediation.
The new directive allows for three types of mediators: court employees, mediators in the court’s roaster and external mediators chosen by the litigants.
However, Tamerat recommends the process to include and allow traditional means of dispute resolutions in the directive.
The directive gives courts three months to setup such systems.