Amicable Dispute Resolution in Civil and Commercial Matters in Ethiopia: Negotiation, Conciliation and Compromise

Author:Tecle Hagos Bahta
Position:Tecle Hagos Bahta Associate Professor of law, Mekelle University; currently, Senior Lecturer of Law, Department of Law, University of Botswana. The Author can be reached for comments at: teclino2u@gmail.com
Pages:1-30
SUMMARY

Amicable dispute settlement methods play a major role in the resolution of civil and commercial disputes. These mechanisms present advantages to the parties as compared to arbitration and litigation. The Civil Code of 1960 contains provisions on Conciliation and Compromise, which set out the minimum legal framework for practical use by disputing parties in civil and commercial matters.... (see full summary)

 
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1
Amicable Dispute Resolution in Civil and
Commercial Matters in Ethiopia:
Negotiation, Conciliation and Compromise
Tecle Hagos Bahta
„Discourage litigation. Persuade your neighbours to compromise whenever you can.
Point o ut to them how the nominal winner is often a real loser in fees, expenses and
waste of time’. (Abraham Lincoln)
Abstract
Amicable dispute settlement methods play a major role in the resolution of civil and
commercial disputes. These mechanisms present advantages to the parties as
compared to arbitration and litigation. The Civil Code of 1960 contains provisions
on Conciliation and Compromise, which set out the minimum legal framework for
practical use by disputing parties in civil and commercial matters. Conciliation and
compromise are in the main regulated under Arts. 3318-3324 and 3307-3317
respectively. The Civil Procedure Code of 1965 also consists of several provisions
on compromise (Arts. 274-277). Generally, disputes are legally and conveniently
amenable and better resolved through these amicable dispute settlement methods.
However, whether they are put in use entirely depends on the free will of the
disputing parties’. They can only be resorted to whenever the disputing parties
commit themselves to use them in their contractual agreements. For certain other
disputes, these amicable dispute settlement mechanisms are compulsory; in such
cases, policy rationale dictates that disputes of such nature should be swiftly
resolved through amicable dispute settlement methods. Some other disputes are,
however, vested exclusively in the courts. This article distinguishes arbitration from
conciliation. It is discussed whether conciliation differs from mediation. Attempt
has also been made to shed light on the nature and application of concilio-
arbitration in Ethiopia. The legal framework underpinning negotiation, conciliation,
and compromise is expounded. Furthermore, the legal lacunae in relation to
conciliation is addressed.
Key terms
Mediation · Conciliation · Compromise · Concilio-arbitration
DOI http://dx.doi.org/10.4314/mlr.v13i1.1
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
Tecle Hagos Bahta Associate Professor of law, Mekelle University; currently, Senior
Lecturer of Law, Department of Law, University of Botswana. The Author can be reached
for comments at: teclino2u@gmail.com
2 MIZAN LAW REVIEW, Vol. 13, No.1 September 2019
Introduction
Alternative dispute settlement mechanisms play a significant role in the
resolution of civil and commercial disputes in Ethiopia. Direct negotiation and
conciliation do have no less importance than arbitration. While arbitration has
(of late) attracted the attention of legal scholars and practitioners, the paucity of
literature in relation to the amicable dispute resolution mechanisms shows that
little, if any, attention has been devoted. That notwithstanding, there is a steady
increase in the number of decided cases in connection with such amicable
dispute settlement mechanisms by the Cassation Division of the Federal
Supreme Court. In order for courts to ground their judgments on sound
theoretical and conceptual underpinnings, therefore, there is the need for
concerted efforts to enhance the conceptual and legal expositions in this area.
The first section of this article clarifies the basic conceptual and legal
foundations of negotiation, mediation or conciliation in Ethiopia, and it sets out
the conceptual and legal grounds for distinguishing arbitration from conciliation
or mediation. In Section 2, the nature and conceptual underpinnings of amicable
dispute settlement mechanisms and their distinguishing features are highlighted.
Furthermore, the role of the legislature, courts and practicing lawyers
(advocates) in properly and carefully paying attention to the overall trade-offs
between settlement of disputes and litigation is discussed. The legal framework
for conciliation, as it stands today, and the legal lacunae thereof are enunciated
in Section 3. Finally, the salient peculiarities, enforcement and the legal
framework on compromise (that is to say, the outcome of direct negotiation,
mediation or conciliation) are discussed in Section 4 based on the relevant legal
provisions and authoritative cases.
1. Arbitration and Amicable Dispute Settlement Mechanisms
Arbitration exhibits differing attributes from the other non-adversarial dispute
settlement methods; it is actually more akin to litigation than the amicable
dispute resolution mechanisms. Arbitration is not thus the subject of this article.
However, a brief discussion is ventured below to highlight the salient
dissimilarities between arbitration and the amicable dispute settlement
mechanisms in general and conciliation or mediation in particular. In Mukemil
Mohammed v Miftah Kedir,1 the Cassation Division of the Federal Supreme
Court identified four alternative dispute resolution mechanisms, viz.,
negotiation, conciliation, mediation, and arbitration. The Court, then, proceeded
to determine whether the dispute settlement method that the disputing parties
employed to resolve their disputes was conciliation or arbitration.
1 Cassation Case No. 38794 [2001EC] F ed. Sup. Ct. Rep., Vol. 9, p.182.

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