Conciliation and Arbitration in Zimbabwe

Conciliation and arbitration in Zimbabwe are regarded as distinct alternative dispute resolution mechanisms. Conciliation is fundamentally a process of persuasion and restoration. Arbitration, by contrast, is adjudicative. The legislature recognizes both conciliation and arbitration in Zimbabwe as important mechanisms of resolving disputes. For instance, section 93(1) of the Labour Act [Chapter 28:01] recognizes conciliation as an alternative dispute resolution mechanism in respect of labour and employment matters in Zimbabwe. Furthermore, section 55(1) of the Consumer Protection Act [Chapter 14:14] recognizes conciliation as an alternative dispute resolution mechanism in respect of consumer disputes in the country. see Prince Kanokanga, 'Consumer Arbitration in Zimbabwe: A Road Less Travelled.' (2022) Midlands State University Law Review Special Issue 8 -34.

The Constitutional Court in Isoquant Investments (Pvt) Ltd v Darikwa 2020 (1) ZLR 1268 (CC) held that conciliation and adjudication are two distinct concepts. The Honourable Chief Justice Malaba CJ held that, the conciliation process which a labour officer must follow may be divided into distinct steps. The overall process, however, usually involves four broad stages. These are introduction, story-telling, dispute analysis and problem solving.

The Supreme Court in Vundla & Another v Innscor Africa Bread Company Zimbabwe (Pvt) Ltd & Another SC 14-22 held that a properly conducted conciliation does not require a Statement of Claim, Statement of Defence, reply or written submissions. Additionally, the Supreme Court in Dzenga v Grain Marketing Board & Another SC 84-23 held that the procedures such as the hearing of oral submissions or the production of written submissions by the parties and determination of a matter, is typical of an adjudicative process, such as arbitration, and is alien to the conciliation process.

Arbitration in Zimbabwe on the other hand is adjudicative. The provisions of the Arbitration Act [Chapter 7:15] which adopted the Model Law on International Commercial Arbitration ('Model Law') apply to both domestic and international arbitration in Zimbabwe. see Davison Kanokanga, Commercial Arbitration in Zimbabwe (Juta & Co 2020).

The Arbitration Act [Chapter 7:15] applies to commercial and non - commercial disputes. Therefore, whether a matter is referred for compulsory arbitration in Zimbabwe under the Consumer Protection Act [Chapter 14:14] or the Labour Act [Chapter 28:01] the provisions of the Arbitration Act [Chapter 7:15] apply.

A significant feature of the current arbitral regime in Zimbabwe is that it gave effect to domestic and international arbitration in the country and also gave effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ('New York Convention'). see Davison Kanokanga & Prince Kanokanga, UNCITRAL Model Law on International Commercial Arbitration: A Commentary on the Zimbabwean Arbitration Act [Chapter 7:15] (Juta & Co 2022).

The Supreme Court in Brewing and Distilling Employers' Association v Brewing and Distilling Workers Union & Others SC 125-25 at para 24 - 25, succinctly distinguished the difference between conciliation and arbitration in Zimbabwe as follows:

"Conciliation and arbitration, though both instruments of alternative dispute resolution, are distinct in both nature and purpose, one seeks harmony, the other finality. Conciliation is fundamentally a process of persuasion and restoration. It is informal, facilitative, and rooted in the spirit of dialogue. The conciliator's role is not to impose, but to guide, to bridge differences through reasoned compromise and to nurture the re-emergence of understanding between dispute parties. In essence, conciliation is a process of mending rather than adjudicating; it thrives on co-operation, and its outcome depends entirely on the will of the parties to accept the proposed resolution. When consensus is reached, the conciliator may issue a certificate of settlement, based on an agreement voluntary arrived at by the parties...

Arbitration, by contrast, is adjudicative. It bears the solemn character of a quasi-judicial proceeding in which an impartial arbitrator, functioning much like a judicial officer, listens to evidence, applies the law to it, and renders a binding decision. The process culminates not in negotiated peace, but in a determination that carries the authority of finality. Unlike the conciliator, the arbitrator's mandate is to decide, not to persuade; his award is enforceable as a judgment and leaves little room for continued negotiation."