Introduction

The essay shall defining what Alternative Dispute Resolution (ADR) is, and its importance in the premises
of Law, in brief comment on its history in Zambia. It shall discuss why it is undesirable and unhealthy to
always resort to litigation in courts as stated by Lord Denning. Secondly, thesis shall discuss as formulated
by Lord Goddard L.J in the Case of Blunt V. Park Lane Hotel (1942) 2KB 253 at 257, the principle of
privilege against self- incrimination that protects an accused from the need to give evidence which may
incriminate him and with the help of decided cases the nature of without prejudice privilege and the rules of
confidentiality in Alternative Dispute Resolution.

DEFINING WHAT ALTERNATIVE DISPUTE RESOLUTION IS AT LAW?

In a layman’s language, Alternative Dispute Resolution (ADR) can be said to be, a term used to describe
several different methods of resolving civil legal disputes without going to court.

Mwenda (2003) on the other hand opined that, ADR is said to be virtually any process whose objective is to
facilitate the resolution by consensus of the parties than imposing the resolution to the parties in an
adjucative manner.1 It is a method used to resolve disputes without having recourse to the court. As the
abbreviation indicates ADR offers an alternative which involves the settling of the dispute via courts.
Suffice it to state that, the mischief behind the introduction of ADR in Zambia was the delay and court
associated with litigation.2 It is a notorious fact that Zambian court heavily burdened with cases and that
resolution taken long often leaving the litigants frustrated and unable to proceed with their business
necessitating the introduction of alternative dispute resolution mechanism for resolving disputes into
Zambian legal system.3 However, the laws of Zambian do not provide what alternative dispute resolution
is, but instead defines what an arbitration is which is the component of Alternative Dispute Resolution and
the law does define " arbitration " to refers to any arbitration whether or not administered by a permanent
arbitral institution and means the conduct of proceedings for the determination of a dispute by an arbitral
tribunal in terms of this Act.4
Historically, Alternative Dispute Resolution (ADR) through common law tradition has its origins rooted in
English legal development, dating the Norman Conquest, legal charters and documents indicate that English

1
-Mwenda,K.K.(2003).Principles of Arbitration Law. Florida.Brown walker Press. Pg 4
2
-Mwenda,W.S (2006).Paradigm of ADR and justices delivery in Zambia. Obligatory Essay.University of South
Africa. Pg 25.
3
- ibid page 14.
4
4- section 2 of Act number 19 of 2000

1
citizenry of highly respected male officiated during the hearing of private wrongs.5 In pre-colonial Zambia,
dispute resolution mechanisms were based on the indigenous or customary laws of the various ethnic groups, 6
which means the body of law that is ‘home grown.’ 7 Zambia being a British colony was influenced by British
legal system and this lead to development of methods and application of alternative dispute resolution.
WHAT A DISPUTE IS AND IT’S NATURE.
A dispute is the concern subject of the alternative dispute resolution irrespective of the form it may take. A
dispute may defined as, “a class of conflict which manifests itself in distinct, justiciable issues”. 8 It involves
disagreement over issues capable of resolution by negotiation, mediation or any other dispute resolution
process involving a neutral third party. The differences can usually be examined objectively by the parties in
the case of negotiation or by the neutral in the case of the other methods and the neutral can take a view on
the issues to assess the correctness of one party or the other.9 David Foskett notes that an ‘actual’ dispute
will not exist until a claim is asserted by one party which is ‘disputed’ by the other.
According to Brown and Marriot(1999) the question as to whether or not a ‘dispute’ exists can be highly
relevant. If no dispute exists, a party wishing to enforce any aspect of the contract may do so through the
courts; but if a dispute it exists then the specified process must be followed. 10 Therefore, Disputes are an
expression of people’s differences and by airing those, opportunities are provided to better understand one
another so as to peacefully resolve the differences.
It is important to hastily acknowledge that parties to an agreement may at the time of making the agreement
in whatever form it take should provide clause on how all disputes shall be resolved, in an event that they
arise, and it shall be clear as to whether the resolution shall be binding to the parties or not. The disputes
vary in nature and range. Even within a category, differences are readily apparent due to differences in
issues and factors that can influence the opposing parties. This explains why one process can’t solve more
than one dispute. Some simple disputes may be resolved through negotiation, while some disputes require
the assistance of a neutral third party who can introduce carefully devised procedures for examining and
possibly, evaluating the issues. Others require the intervention of an expert neutral third party or the use of
an adjudication process. Thus, processes will range from relatively informal ones suitable for personal
disputes, to very sophisticated and professionally designed procedures which can be used for major complex
5
- McManus, M., & Silverstein, B., November 1, 2011 @ http://cadmusjournal.org/node/98 retrieved on
13/09/2015
6
-By pre-colonial Zambia we are referring to the period before the British South Africa Company
(B.S.A.Company), a commercial concern incorporated by Royal Charter on 29 October 1889, took over the
administration of the territory as a British Protectorate.
7
-Anyangwe, C. id. n 4 above, at p.46.
8
-Saharay,M.(2008).Textbook on Arbitration & Conciliation with ADR. pg 117.
9
- (1989).The Law and Practice of Compromise. Pg 5.
10
- Ibid pg 6

2
and often highly technical and complex issues. Hence the neutral third party should understand the subject
matter in a particular dispute she is faced with and its implications and also the various dispute resolution
processes available.11 This enables her to select or design a process most suitable for the particular issues.
She must have a better insight into the parties’ concerns, motivations, aspirations and interests, because
parties have greater confidence in a neutral third party who clearly understands their dispute and the
underlying issues as she is most likely to reach a settlement which is acceptable to both parties whose
interests is at stake. The issue can be single or variety of issues, they may range from being simple to very
complicated ones.
WHY IT IS UNDESIRABLE AND UNHEALTHY TO RESORT TO LITIGATION IN COURTS WHEN
MATTERS CAN BE SETTLED AMICABLY IN ALTERNATIVE.

Types of techniques of proceedings have been developed in response to backlog of civil litigation, and they
have proved beneficial, saving time and money for everyone involved. The rising cost of litigation
apparently and clearly seems to be the rationale behind the making of traditional lawsuits impractical for
many individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in delays
of a year or more for private parties to have their cases heard by the courts. These include Negotiations,
conciliation, mediation, Early Neutral Evaluation, Med-Arb, Judicial settlement, Mini Trial, Summary Jury
Trial, and Arbitration, and additional kinds of ADR designed for specific cases and subject matters as the
particular jurisdiction may allow.
PROCESSES OR TECHENIQUES OF ALTERNARIVE DESPUTE RESOLUTION
Generally in all ADR process have a leveled playing field to the parties in exception of in arbitration. The
leveling of the playing field in ADR has made it possible for Judges and jurist to favour that some matters
be decided in alternative process than litigation. There are different processes to be applied meant to achieve
justice, although justice is very difficult to define. This was admitted by Torstein Eckhoff, who said that it is
characteristic of principles of justice that they are general and vague. Attempts to concretize the concept
have not been entirely successful.12 The following are some the tools of alternative dispute resolution.
1.Negotiation
Negotiation has been defined as “the process we use to satisfy our needs when someone else controls what
we want”.13 Negotiation normally occurs because one has something the other wants and is willing to
bargain to get it.14 Negotiation is a process whereby parties to a dispute on their own without a third a party,

11
- Mwenda,W.S.,(2006) supra P. 16.
12
- (1974). Justice – Its Determinants in Social Interaction. p.34.
13
- Maddoc, R., (1988). Successful Negotiations, p.14.
14
- Glossary to Brown and Marriot. id n 17 above, at p.422.

3
hold discussions about a matter with a view to reconciling differences and establishing areas of agreement,
settlement or compromise. Communication for the purpose of persuasion, negotiation is the pre-eminent
mode of dispute resolution.15 It is the simplest and often the quickest way of settling commercial disputes,
because the parties are in the best position to know the strengths and weaknesses of their own cases. 16
WANG (2000) states that It has the advantage of informality and negotiation is believed to be the quickest
means of settling commercial disputes, as long as parties communicate and are willing to compromise,
because communication process is directly between the parties, without a third party. However, negotiation
is not always the best, especially where parties belong to different cultures.17
Conciliation/Mediation
The term conciliation is often used interchangeably with mediation. However, conciliation is often viewed
as being more facilitative and non-interventionist while mediation is seen to allow for more mediator pro-
activism. However, the reverse can also be true. 18 The accompanying process in conciliation may be less
structured than in mediation but a conciliator still endeavors to bring disputing parties together to assist
them to focus on the key issues. In mediation, this involves a third person with a unique role. The mediator
(a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or
some other types of ADR, the mediator does not decide how the dispute is to be resolved. Mediation often
leads to better communication between the parties and lasting resolutions. It is particularly effective when
parties have a continuing relationship, such as neighbors or businesses. It is also very effective where
personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to
express their concerns in a voluntary, confidential process while working towards a resolution. The
mediation process is commonly used for most civil case types and can provide the greatest level of
flexibility for parties.
3.Arbitration
In arbitration, the arbitrator (a neutral) reviews evidence, hears arguments, and makes a decision (award)
to resolve the dispute. This is very different from mediation whereby the mediator helps the parties reach
their own resolution. Arbitration normally is more informal, quicker, and less expensive than a lawsuit. In a
matter of hours, an arbitrator often can hear a case that otherwise may take a week in court to try. This is
because the evidence can be submitted by documents rather than by testimony.
There are two types of arbitrations binding and non binding arbitration.
15
- Goldberg, Sander and Rogers (1992). Dispute Resolution and Other Processes. p.17.
16
- Wang,M., (2000). ‘Are Alternative Dispute Resolution Methods Superior to Litigation in Resolving
Disputes in International Commerce?’ 16 Arbitration International, No.2, at p.191.
17
- Supra
18
- Newman, P. (1999). Alternative Dispute Resolution. p.9.

4
Binding arbitration, Usually conducted by a private arbitrator, this process takes place outside of the court.
"Binding" means that the arbitrator's decision (award) is final and there will not be a trial or an opportunity
to appeal the decision. Generally ADR clauses are not enforceable by the courts. In the case of Channel
Home Centers Division of Grace Retail Corp V. Grossman; Held that a contract providing for alternative
dispute resolution should be enforced and one party should not be allowed to evade the contract and resort
prematurely to the courts.19 On the other hand it was stated that a contract to negotiate in good faith was
known to the law and in some circumstance would be enforceable, though this would depend on the
circumstance of the case.20
Non-binding arbitration, May be ordered through the court (Judicial Arbitration) or conducted privately.
In this process, the arbitrator's decision is “not binding.” This means that if a party is not satisfied with the
decision of the arbitrator, they can file a request for trial with the court within a specified time. However,
depending on the process if that party does not receive a more favorable result at trial, they may have to pay
a penalty.
Adjudication
Adjudication is the determination of a dispute by an independent expert or panel of experts. This is a person
or people chosen because of their appropriate specialist technical knowledge and experience. Adjudication
can be swift because it comprises an exchange of written submissions followed by a hearing. This can lead
to a decision within a very short time. This benefits the parties from the technical expertise and experience
of the adjudicator. The likelihood of the process resulting in a technically correct decision and results can be
contractually binding on the parties. Panelist of adjudicators by procedure are allowed to open up, review
and revise decisions made and certificates issued during the administration of a contract. However, there is a
disadvantage with a risk of becoming involved in what is effectively ‘mini-arbitration’.21
Med-Arb
This was developed after realizing the complexity of ADR. ADR was brought to solve disputes amicably.
Sometimes, however, no one method of ADR can completely satisfy the special circumstances of a
particular set of parties. Consequently, new methods are devised to meet these needs. Hence additional
methods of ADR have been created that borrow elements from various types of ADR.22 One such hybrid
dispute resolution process is the “Med-Arb”, which refers to a combination of mediation and arbitration. In
19
- 4th December, 1989, Unreported
20
- Coal Cliff Colliers Pty Limited V Sijehama Pty Limited (1991) 24 NSWLR 1
21
- Jagusch, S. R. (1999). ‘Principles of International Arbitration.’ Paper presented to the International
Bar Association African Regional Conference on Practicing Law in the 21st Century-Meeting the
Challenges. Held at the International Conference Centre in Accra, Ghana. 7-10 April, 1999, p.6.

22
- Patterson, S and Seabolt, G. (2001). Essentials of Alternative Dispute Resolution, p.161.

5
med-arb the parties try to reach an agreement through mediation and when that fails, the mediator or another
third party makes a binding decision.23 Med-arb is therefore a hybrid form of ADR which commences with a
mediator who tries to resolve a case between two disputing parties. It is a blending of mediation with its
persuasive force, and arbitration, with its guarantee of an assured outcome. The advantage of med-arb is that
the same neutral acts as mediator and if necessary, as arbitrators.
Collaborative Law
This is typically used in the family law setting as an alternative to litigating a divorce. Instead of bringing
the matter to court, the couple agrees to behave courteously and have their attorneys and outside consultants
help them along the way. It is different than mediation or arbitration in that there is no one acting as a
neutral third party. This approach is relatively new in the United States and is not as widely used as other
types of alternative dispute resolution practices. However, this approach does show great promise and some
studies have shown that is highly effective.24
Mini-Trial
A mini-trial is a private abbreviated process of presentation by lawyers to the disputants to help them assess
the strength and weakness of their positions and to help them reach a decision whether or not to proceed to
trial. Usually there will be a third party advisor who renders a non-binding opinion about the legal, factual
and evidentiary points of the case and what the outcome might be in court. The lawyers can then use this
information to come to a conclusion. This is a two-part settlement process, which originates as mediation
but may graduate to arbitration using the neutral party as the arbitrator who gives an award.
MERITS OF ALTERNATIVE DISPUTES RESOLUTION OVER LITIGATION.

From the legal practical point of view and applicability comparison of ADR and litigation, it is
comprehensible that ADR is more favored compared to Litigation. It is from the following reasons below,
that such option to use ADR in dispute resolution is so eminent. In this contemporary business world it has
become clear that business houses have resorted to handling their disputes through ADR compared to
Litigation and some of the reasons are:-

SPEEDY RESOLUTION AND CONCLUSION.

Speed is a primary advantage of ADR, while a dispute to court may take over a year to resolve , the same

23
- See generally, Tom,A., (1996). ‘Vocabulary of ADR Procedures’ (Part 2) Disp. Resol., Jan - March

24
- www://.LawInformation.com;The Different Types of Alternative Dispute Resolution

6
dispute could be disposed off in a few months using ADR. This is on the basis that there are no strict rules
required in due process of hearing between the parties to the dispute.
In a traditional litigation, all court system has to abide by speedy trial rules, which require that criminal
causes be heard first. Accordingly, a business dispute which tends to deal with civil rather than criminal
have to wait. In Zambia this means that lawsuits will not reach a courtroom for at least a year. If parties
really want to resolve their dispute expeditiously mediation or other ADR technique is the realistic
alternative.
RELATIVELY LOW COSTS
Study and practice has proved that ADR always cost only a fraction of a tradition litigation. ADR
procedures are streamlined and cost effective. This entails that Court costs, Legal fees, and expert fees can
be saved are generally.
To the contrary, litigation is expensive compared to ADR. Even small disputes can grow into costly legal
battles and the longer the case drags on the higher the legal fees. Besides, the off pocket expenses for the
counsel, the managers need to consider opportunistic costs involved in resolving the dispute, whereby at the
end of the litigation the company may end up making a loss than profits to the amount being claimed.
FLEXIBILITY IN PROCEDURE.
In ADR the proceedings are flexible and accessible. The major reason for this is acceptability parties choose
a technique to apply by them. The parties are at liberty to choose the ADR process that is best for them. By
this they depart from formal rigid modes of process in litigation. Besides, by being accessible it entails no
complicated rules of evidence to be applied during the proceedings as in adversarial system. From the nature
of ADR, it is clear that it permit more participation through interactive process, parties may have more
chances to tell their side of the story than in court and may have more control over the outcome

In ordinary litigation, there are strict rules to be followed such as rules of evidence although not as strict as
in criminal matters, but a party who asserts must prove his or her case on the balance of prepondency. This
alone results in stress and sours the relationship between the parties as opposed to when they sit and reach
an agreement between themselves. In an ordinary litigation, only the fact finder has power to impose what
he feels is worth to only a single party to a matter no how disadvantage it may be to the other.

PRESERVATION OF RELATIONSHIP BETWEEN PARTIES.

Because of the elementary nature of ADR of being interactive, by this it enhances cooperative and

7
 conciliation of parties. This guarantees that the parties having a dispute may work together with the neutral
to resolve the dispute and agree to a remedy that makes sense, thereafter continue in business as usual.
In case of litigation, the matter in which proceedings are heard are on the basis of arguments with a view to
prove a case to a certain standard. No matter how parties may pretend to share a common ground still a fact
is that each desire to go with a win not a lose in the outcome of the case.

FAIR OUTCOME AND MINIMAL STRESS.

Alternative Dispute Resolution can accommodate power imbalances. It is a true finding that many disputes
are characterized by power imbalances where one side has vastly superior financially resources. In a
lawsuit, the wealthier party has a great advantage because it can buy high priced legal talented counsel and
prevail even with a weak case, but with ADR the party with a stronger case argument, not the fattest wallet
is likely to win the case. Also ADR reduces stress, but to the contrary, in a litigation before court due of
backlog of cases, it possible for the matter to suffer several adjournments at the instance of either party these
adjournments cause stress and loss of confidence as to the outcome of the case.
CONFIDENTIALITY AND LIKELIHOOD OF SATISFYING RESOLUTE.
In Alternative Dispute Resolution any resolution attained is consensus therefore it can be more satisfying.
The other outstanding reason is that many people have reported a high degree of satisfaction with ADR as
opposed to litigation, this enhances either personal or corporate image. This is achieved by holding the
proceedings as in closed meeting environment from the public contrary to ordinary court proceedings where
the media have the access to report and tarnish the corporate image of the company.
Litigation is held in open court hence open to the public too and this has a long outstanding effect to both
parties to their cliental since law suits are matter of public record. Media house will have access to the
record with allegation without supporting evidence, with unpleasant facts taken out of context. These court
documents remain for years and the damage to either party may be permanent.
EXPERTISE ADVICE
Last not the least it can be persuaded that ADR provides provision of expertise advice and solution on one
to one and resolution is very favorable to the dispute as opposed to where it is imposed in litigation on the
parties to a dispute.
The advantages of ADR outweigh the disadvantages in practical sense, hence many people opt for it in their
disputes as opposed to litigation however, and the following are some of the disadvantages.
It is a notorious fact that disputes may differ from one to another, hence, ADR may not be suitable for every

8
dispute, and therefore ADR has its own disadvantages 25
It is from the a foregoing that considering the effectiveness of ADR and the desire of the people to get the
much desired results quickly makes it much favored. The fact that the conduct of litigation is still governed by
common law system of dispute resolution was and is still governed by formal and rigid rules of civil or
criminal procedure which do not all allow parties to a dispute to bargain in respective cases,. On this basis,
litigation denies the parties a chance to settle their disputes with creative solutions. On this basis, more flexible
and party controlled process were believed to encourage consensual problem solving and empower individuals
to enable them to control the outcome of their dispute and also preserve personal and business relationship.26

(b)DISCUSSING THE PRINCIPLE OF NATURE OF THE WITHOUT PREJUDICE PRIVILEGE AND

RULES OF CONFIDENTIALITY IN ALTERNATIVE DISPUTE RESOLUTION.

In handling the disputes between the disputants, a third party should and must be aware of the rules of
procedure on how to handle the dispute through whichever means he may choose to use. Some of the rules are
without prejudice privilege, confidentiality, being impartial, being fair to both parties and abiding to ethics. It
is among these rules where the two namely; without prejudice privilege and the rules of confidentiality do
exists in the applicability of law at play.

DEFINING AND DISCUSSING WHAT “WITHOUT PREJUDICE PRIVILEGE” IS.

The without prejudice privilege rule is generally a rule in ADR which prevent statements made by disputants
in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the
hearing or Litigation as evidence of admissions against the interest of the party which made them. In the case
of, WALKER V WILSHER it was Held that, ‘What is the meaning of the words ‘without prejudice privilege’?
I think they mean without prejudice privilege to the position of the writer of the letter if the terms he proposes
are not accepted.27 The without prejudice privilege rule entitles a party not to produce in evidence to the court
details of negotiations in relation to litigation, or anticipated litigation. It protects statements or offers made in
the course of negotiations for settlement of a case from being put before the court as admissions against
interest. The general rule as to admissions is not only that they bind the maker of the admission; but they
relieve the party who relies on the admission from further proof if the admission is of evidence relevant to the
issue in a case. Admissions may be made by parties or their representative in correspondence. These
admissions can be relied on at Litigation.
25
- Dr. Agarwal, V.,(2001). Document Series No. 14: Alternative Dispute Resolution Methods: Geneva
26
- Palmer,M.(1998) Alternative Dispute Resolution and The Primary Process of decision making. Little. Brown &
company P.g 7.
27
- (1889) 23 QBD 335

9
By contrast where the without prejudice privilege rule applies neither party can rely on admissions made by the
other whilst the immunity covers them. This was explained in the case of OCEANBULK SHIPPING & TRADING
SA V TMT ASIA LTD AND ORS) (‘OCEANBULK’) by Lord Clarke in the UK Supreme Court as follows: The
approach to without prejudice negotiations and their effect has undergone significant development over the
years. Thus the “without prejudice principle” or as it is usually called, the without prejudice privilege rule,
initially focused on the case where the negotiations between two parties were regarded as without prejudice
to the position of each of the parties in the event that the negotiations failed. The essential purpose of the
original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to
rely upon admissions made by the other in the course of the negotiations. The underlying rationale of the
rule was that the parties would be more likely to speak frankly if nothing they said could subsequently be
relied upon and that, as a result, they would be more likely to settle their dispute.28 It should be appreciated
that definition, “without prejudice privilege does not protect confidences as between the parties. It enables
them by their implied agreement, to exclude certain information from the court.29

There are two rationale behind the recognition of the without prejudice privilege namely Public policy element
and contractual Policy.
(i) PUBLIC POLICY ELEMENT.
The justification for having the rule is the public policy of encouraging parties to litigation to settle their
disputes out of court. What is regarded as the public policy element to the without prejudice privilege rule is to
encourage parties to speak frankly in the hopes that they will settle their litigation. 30 The ‘without prejudice
privilege’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of
encouraging litigants to settle their differences rather than litigate them to a finish. 31 That the rule rests, at least
in part, upon public policy:… that parties should be encouraged so far as possible to settle their disputes
without resort to litigation and should not be discouraged by the knowledge that anything that is said in the
course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual
reply) may be used to their prejudice in the course of the proceedings . They should, as it was expressed by, be
encouraged fully and frankly to put their cards on the table. … The public policy justification, in truth,
essentially rests on the desirability of preventing statements or offers made in the course of negotiations for

28
- [2010] UKSC 44
29
- Reed Executive plc and another v Reed Business Information Ltd and others [2004] 1 W.L.R. 3026:
per Jacobs LJ
30
- Rush & Tomkins Ltd v Greater London Council [1989] 1 AC 1280 per Lord Griffiths.
31
- Cutts v Head [1984] Ch 920 Oliver LJ in

10
settlement being brought before the court of trial as admissions on the question of liability.32   
(II) CONTRACTUAL ELEMENT.
The contractual basis of the without prejudice privilege rule rests on the express or implied agreement of the
parties themselves that communications in the course of their negotiations should not be admissible in evidence
if, despite their negotiations, a contested hearing ensues. In the case of UNILEVER PLC V THE PROCTER &
GAMBLE CO ROBERT Walker LJ considered the general incidents of application of the rule, first as to public
policy (above) and then by reference to its contractual qualities, as follows Its other basis or foundation is in
the express or implied agreement of the parties themselves that communications in the course of their
negotiations should not be admissible in evidence if, despite the negotiations, a contested hearing ensues .33
The burden of proof lies with the party that wishes to rely on the provision of without prejudice privilege or
confidentiality, like other forms of privilege the onus of proof of application of the without prejudice rule in
each case – whether of privilege or confidentiality – will be upon the person asserting the immunity. put the
point in WAUGH V BRITISH RAILWAYS BOARD Lord Edmond-Davies as he then was had this to say, ‘It is for
the party refusing disclosure to establish his right to refuse’. The general rule – as ever – is that all material
evidence should be available for inspection.34
It is important to note that the agreement maybe waived by both parties at consensual. The agreement may be
waived by the parties (whether expressly or impliedly); but waiver can only be by both or all of the parties
jointly (any mediator’s assent is not needed. In the case of Calderbank V. Calderbank it was said that “with
a correspondence the express waiver by one party is accepted as part of an implied term which is treated by
both as excluding the immunity; but solely where the court may be asked to adjudicate on the specific
question of costs.35
However, it is important to note that the principle is not absolute; there is what is termed as the overriding of
without prejudice privil ege. And the following are the exceptions as set out in the celebrated case of Unilever
plc v The Proctor & Gamble Co.36
Where the issue is whether without prejudice communications have resulted in a concluded compromise
agreement, those communications are admissible.37 Secondly, Evidence of the negotiations is admissible to
show that an agreement arising from negotiations should be set aside on the ground of misrepresentation, fraud
or undue influence. Besides, even if no compromise results ‘a clear statement which is made by one party to

32
- Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156 per Clauson. J
33
-[2000] 1 WLR (at 2442)
34
-[1980] AC 521 at 541
35
- Calderbank v Calderbank
36
-[2000] 1 WLR 2436 per Robert Walker LJ as approved in both Ofulue v Bossert and in Oceanbulk Shipping
37
- Tomlin v Standard Telephones and Cables [1969] 1 WLR 1378).

11
negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving
rise to an estoppels’38 One party may be allowed to give evidence of what the other said or wrote in without
prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other
‘unambiguous impropriety.39 Along with that, evidence of negotiations may be given, for instance, “on an
application to strike out proceedings for want of prosecution” in order to explain delay or apparent
acquiescence. Another aspect is that of issues unconnected with the truth or falsity. In the case of MULLER &
ANOR V LINSLEY & MORTIMER in this case one of the issues between the parties was whether the claimant, in
an action against his former solicitors, had acted reasonably to mitigate his loss in his conduct and conclusion
of other negotiations and compromise of proceedings. Hoffmann LJ. treated that issue as one unconnected
with the truth or falsity of anything stated in the negotiations, ‘and as therefore falling outside the principle
of public policy protecting without prejudice communications. 40 ‘The exception for an offer expressly made
‘without prejudice except as to costs’ was clearly recognized by the courts,41 based on an express or implied
agreement between the parties.42 The last but not the least is Privilege in relation to ‘matrimonial conciliation’43
DISCUSSING THE RULES OF CONFIDENTIALITY.
Confidentiality is a legal principle of an understanding between the parties to a dispute and the neutral about
the scope and limitations of disclosure or the protection that apply to the dispute resolution proceeding. This
maybe in form of a confidentiality agreement, and at a minimum, it should include a simple statement
affirming the intention of the parties and neutral that there shall be a provision of confidentiality between the
parties to the proceedings.
Many confidentiality agreements also include information highlighting certain details and limitations of the
confidentiality protections such as; that all forms of communication (written and oral) may be protected; also
that a party’s communications made available to all other parties (i.e., communications during a joint session)
are not protected from disclosure by a party; and that, if agency policy permits, parties have the ability to
change the confidentiality protections as contained in the agreement.
Confidentiality is a critical component of a successful ADR process, the ethics of confidentiality in ADR
process relates to confidentiality within the whole process and in relation to the subject of maintaining
confidences in the holding of separate meetings with different parties. The test as whether there will be a legal
obligation to maintain confidentiality will depend on condition under which the process takes place and the

38
- Hodgkinson & Corby v. Wards Mobility Services [1997] FSR 178 at 191).per Neuberger .J
39
- William V. Hull
40
-[1994] EWCA Civic 39, [1996] PNLR 74
41
- Cutts v Head
42
-Calderbank v Calderbank
43
- Robert Walker LJ as That hybrid species of privilege.

12
applicability of the law of the jurisdiction governing the process. It is imperative to note that there is no legal
duty of confidentiality if the circumstance of the matter and a legal duty of disclosure override the obligation to
maintain confidentiality then the mediator will consider the ethics without legal constraints. There are three
principal ways to hold information confidentially; all discussions of separate meetings are brought back into
subsequent meetings by mediator on full disclosure. All parties will freely discuss to the mediator in separate
meetings, while in principle that all matters will be made available to all parties and the mediator will discuss
how information will be brought to the parties.44
The guarantees of confidentiality allow parties to freely engage in candid, informal discussions of their
interests to reach the best possible settlement of their dispute. A promise of confidentiality allows parties to
speak openly without fear that statements made during an ADR process will be disclosed to others.
Confidentiality can reduce posturing and destructive dialogue among parties during the resolution process. It is
essential that neutrals and parties be informed of the confidentiality protections available under the ADR
process and of the limitations to that protection. A neutral ADR person should take the steps necessary to
assure that both internal parties understand the confidentiality provisions that apply to the process adopted to
resolve the issue at stake.
The discussions held during mediation are confidential unless conduct by either party is criminal in nature, or
threats of violence are made that lead the mediator(s) to reasonably believe someone's safety is at risk, or in
any other situation required by law. The mediator(s) will not retain any notes taken during meetings, and tape
recordings of proceedings are not permitted. The mediator(s) cannot testify for or against any party should the
dispute later be pursued through grievance or legal proceedings.
The confidentiality is so strict that if a resolution is reached, the mediator(s) will write up the agreement for all
parties to sign. A copy of the agreement will be given to the individual parties but not retained by the
mediator(s). The mediator(s) will inform the ADR co-liaisons whether or not an agreement was reached, but
will not discuss the mediation with them or give them a copy of the agreement.
The entire process is confidential, the parties and the Evaluator shall not disclose information regarding the
process, including settlement terms, to the court or to third persons unless all parties otherwise agree. However,
Parties, counsel, and Evaluators may respond to confidential inquiries or surveys by persons authorized by the
court to evaluate the ADR process. If there be breach, the Evaluator is disqualified as a witness, consultant,
attorney, or expert in any pending or future action relating to the dispute.
But what of the confidentiality which exists in the negotiations and any documents arising from them?
Communications hitherto covered by the without prejudice rule remain confidential as between the parties and

44
-Chanda,H.N.,(2008).Alternative Dispute Resolution Module(1st edn.). Lusaka .ZAOU Pg. 10.

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any third party (such as a mediator), perhaps indefinitely. In the case of FARM ASSIST LTD V SECRETARY OF
STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS per Ramsey J the issues were Whether, English
law maintains the right of a party to maintain legal privilege or whether in instances where a state of mind or
certain actions are in issue there is a general implied waiver of privileged material Held: The rationale for an
implied waiver in proceedings between a party and its solicitor is that the party cannot, as a matter of
fairness, subject the confidential relationship with its solicitor to public scrutiny and at the same time seek
to preserve the confidentiality of that relationship.45
Now to compare between, “without privilege prejudice” and “confidentiality” in as to which one do remain in
effect even after the process, the privilege can only exist as between the parties to the negotiations and the
court. Once all court proceedings, the main issues and any third party or intervener claims– are at an end, or are
disposed of by the court or once agreement has been reached in the negotiations, privilege goes I oblivion (or
ceases to be applicable), meanwhile confidentiality remains.46
Conclusion
The general commercial society and individual has realized that ADR offers a win-win situation which is more
lucrative than the “winner takes all” system that litigation has to offer. Roscoe Pound was of the opinion that
law was created and designed to satisfy human (individual and social) wants. 47 In other words, law is a social
engineer that ensures that the needs and wants of the society are satisfied. Since not every social problem could
be cured via legal action, ADR is indeed a creature of law that will be engineered continuously as an
alternative to legal action. Hence the words of Lord Denning to say; “it is undesirable and unhealthy to
always resort to litigation in the courts when matters can easily be settled amicably in the alternative”. This
is a true saying because the benefits to the use of ADR are just many and do satisfy the parties to dispute.
Therefore, ADR in the eyes of Justice should be considered as an ally rather than a competitor. This explains as
to why ADR is embraced as a partner instead of as an adversary; courts should accommodate ADR as a friend
rather than a foe or a suspect in the sense that it relief of the courts’ uncontainable work pressure of a huge
backlog of cases that result in discontentment by the masses. But most importantly, ADR should respect
justice, judges and the courts as the last resort to find answers of disputes.
CONCLUSION
ADR procedures can be broadly divided into two categories, namely, adjudicatory and non-adjudicatory. The
adjudicatory procedures such as arbitration, adjudication and binding expert determination, lead to a binding
45
-( No 2) [2009] EWHC 1102 (TCC)

46
- Rush & Tompkins Limited v.Greater London Council and others (1989) AC 1280

47
- Pound, R., (1922).An Introduction to the Philosophy of Law . New Haven: Yale University Press

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ruling that decides the case. The non-adjudicatory procedures contribute to resolution of disputes by agreement
of the parties without adjudication. The adjudicatory processes can also be classified as determinative, while
the non-adjudicatory processes can be said to be facilitative. The non-adjudicatory processes like mediation or
conciliation are facilitative because the neutral helps the parties to negotiate an agreement. While litigation is
public, ADR processes generally enable the parties to preserve their privacy. It is important to notes that
adjudication is concerned primarily with serving the interests of the public (the ‘public-service’ paradigm),
while ADR is concerned primarily with serving the interests of disputants (the ‘customer-service’ paradigm)
albeit, while alluding to the fact that adjudication also serves some interests of parties to a lesser extent and
ADR also serves some public interests. Despite there being a wide variety of ADR techniques or methods, each
method offers unique functions which can be tailored to suit a particular case.

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