2 MIZAN LAW REVIEW, Vol. 13, No.1 September 2019
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.