18 February 2012 Written by  Tefera Eshetu and Mulugeta Getu

ADR in other Laws

ADR in other Laws

The coming discussion is intended to show you the place and importance of ADR in the dispute settlements arising over different subject matters. In the previous discussions we have seen the role of ADR in the customary dispute settlement and also the provisions under Ethiopian laws regulating the matter under the general provisions of the civil code and the civil procedure code. Now we will see the specific provisions in different subject matters like family law, labour law and insurance law. I would like to remind here the discussion we have made about the issue of arbitrability or scope of arbitration and the blurred legal regime we have. Thus, we are not saying that it is only in those subject matter that arbitration would come. But it is evident in many other fields, like investment law, contract, expropriation of property in property law and others. So it is only an example and the student them selves can look fore ward to see other fields. The other thing here is that, we believe that each specific subject has thoroughly dealt ADR in respect to the dispute arising there under like in the family law, labour law or insurance law courses. It is to emphasise its importance and to compare it with the prevailing principles that we have discussed so far.

Arbitration in Family Law

Introduction

Arbitration, as an alternative dispute settlement mechanism, is widely in use, especially in family matters in Ethiopia. Its proceedings are more preferable to the parties in the dispute due to its speedy nature. Both the civil code and RFC (The Revised Family Code) expressly provides for arbitration. In such away those spouses under the dispute are tried to settle their dispute through their appointed family arbitrators other than the ordinary court litigation.                  

Family arbitration as one method is established in modern way in Ethiopian since 1960 when the civil code came into force for facilitating settlement of family disputes by identifying the chronic problems and helping the couples to communicate, and the arbitrators may indeed help save the marriage. This method also improves the relationships between even previously hostile married partners who have prepared themselves for divorce.

This method is the one which has a mandatory power to family disputes. It is clearly seen under Art.731 of the civil code of Ethiopia “if it is found that no arbitrator had been designated …” shown that arbitration be permanent institution rather than a body that being selected periodically as is known in today’s practice. (Art.82(2) of RFC )

The new revised family code of Ethiopia diminished the role of institution of family arbitration as one devise of settling family disputes. For instance, the sole jurisdiction to see and decide divorce cases is given to the court unless the court forwards the spouses taking their consent to family arbitrators to change their mind. (Senior research paper on function of family arbitration under Ethiopian law, by Medhanit Adamu p.18 Unpublished, Haramaya University) But where the court fails to settle a dispute, the court will refer the spouses to nominate their own family arbitrators to solve the dispute amicably. These arbitrators, unlike the civil code family arbitrators, could be any person either professional, family member or any third party as long as the spouses are well consented.

Generally the rationale behind the RFC for the exclusion of the institution of family arbitrators is that, the appointed family arbitrators in both side devoted much time through litigation by supporting their own sides’ interest. It affects the justice system that tries to solve as speedy as possible in a minimum cost. As it has been shown earlier, the purpose of inclusion of family arbitrators, under the civil code, has been taken away under the RFC since the drafting committee came to know that the pre existing family arbitrator failed to meet the objective it was established.

The positions taken by RFC is that determining or settling family disputes should be substantially made through court litigation means’s. If the court failed to do so, it may recommend the parties to settle their disputes through arbitrators by their own choices. But the problem here is that there is no separate division in the court system which independently sees these family cases like divorce. In Ghana, Brazil & elsewhere marriage and family issues have special tribunals and speedy proceedings. (Senior research paper on function of family arbitration under Ethiopian law, by Medhanit Adamu p.18 Unpublished, Haramaya University).

Kinds of Family Disputes Governed By ADR

Before discussing the subject matters of family disputes that are governed by ADRs in our legal system it is better to have a bird over view of the US model. From the US model the kinds of family disputes that are subject to ADR are broadly categorized into two categories: these are 1) divorce and 2) non divorce. In order to solve the above kinds of disputes among the most applicable dispute resolution mechanism, they use a competent mediator by giving positive strategies in order to manage the problems. (Rebert Coulson, Family Mediation: Managing Conflict, Resolving Disputes,Jossey Bass Publishers, 2nd Edn, p 43ff ).

The subject matters of family disputes in general constitute the following matters among other things:

A) Divorce- it is a very common kind of marital disputes that arise when marriage is being dismantled from the human complexity of custody and visitation to the complicated financial and legal aspect of property transfer.

B) Pre-martial agreement- it is a negotiation prior to marriage and planning to protect spouses interest.

C) School and parent- such kind of dispute arise between parents and school authorities because of to receive appropriate educational service to wards their children based on their contract.

D) Teenagers and their parents-such dispute arise when adolescent behavioral problems create emotional climax in a family.

E) Teenager pregnancy-when unmarried teenagers becomes pregnant the dispute arises between the two family groups.

f) Other family disputes-here under are some of the examples                                     

I) Relocation- disagreement may arise when spouses receives promotion or job after that moving elsewhere of one of the spouse.                                                                                                               

II) Nursing care -when a family member retires sometimes other members of the family adjust their life style, as a result of such agreement failure to pay the service reward creates dispute between them.

III) family business-control of family owned companies can be come an issue especially when a founder or subsequent owner dies as a result dispute arise among heirs and legatees.

IV) inheritance- dispute over the meaning and application of a will.

V) violence- the disagreement of a family escaletes into violence.

Under Ethiopian law almost all family disputes that are mentioned above are not subject to ADRs and most of them are not recognized in Ethiopia. As has been stated earlier the family arbitration that was established by the civil code has no or only little recognition in RFC. This shows that arbitrators have no power to decide even the matters that were assigned to them by the civil code. Disputes that arise out of the dissolution of marriage, difficulties that arise between the spouses during the marriage, disputes arising out of betrothal or out of breach of a betrothal (Arts 723. 725 and 726 of the Civil Code), were among the subject matters that were governed by ADRs according to the civil code prior to the coming in to force of the RFC.

As it is clearly provided under the RFC art.115-117 the existence of valid marriage, the established of irregular union and divorce did not belong to the family matters that has to be governed by ADRs rather they are matters which will be seen exclusively by the court. Similarly, under the RFC art.118 (1) stated that “without prejudice to art.177 of the provision of this code, disputes arising out of marriage shall be decided by arbitrators chosen by the spouses.” From this provision it is possible to point out disputes that arise in family can be governed by ADRs. Any non divorce conflict, distribution of property, family business, inheritance by will not by law, violence, relocation of the spouses and the like can be resolved by family arbitrators chosen by the consent of the spouses. Mehari Redaie, on his comment on the RFC, takes the position of appreciating the submission of family disputes to the family arbitrators and justifies its importance to the disputing parties, the government and the society. (Some points to understand the RFC by Mehare Redae p. 108) Here, it is noticed that while the code recognized celebration or conclusion of marriage before religious officers and also according to custom, but limited the decision over divorce to courts of law only.

 

Appointments and Removal of Third Party

A. Appointments - The consent of the spouses is determinant for the appointment of family arbitrators. The number of the arbitrators will also be determined by the spouses. The RFC allows the possibility of number of arbitrators being one or more than that under art.119 (1). So there is no indication as to the evenness or oddness of their number. As it is enshrined under the civil code (Art 332-) and accepted in general jurisprudence it is preferable if the number is odd; otherwise, if their number is even, it will create difficulty while giving decision.  In order to avoid this problem the civil code dealt some indications about the number of the arbitrators. It provides that they should be two from wife side and two from husband side and one by their agreement, if failed, by the nominated fours or some times by the court. This was important as the other arbitrators are chosen from both sides to save the possibility of partiality.

Another point in relation to appointment is about their qualification. There is no qualification requirement to be an arbitrator in the RFC. If they are chosen by the consent of the spouses they can arbitrate the dispute. Regarding this issue the civil code pursuant to art.725 (1) had required the personal testimony of the marriage in order to arbitrate the dispute that arises between the spouses during marriage. But this requirement is not absolute and the spouses can agree to the otherwise.

We will deal latter, in recommendation part, with the issue- what will be the solution if the spouses initially agreed to settle their dispute through arbitration and latter fails to agree on the appointment of the arbitrators?

B. Removal of third parties - An arbitrator is required to conduct the arbitration with in a certain accepted standards. The court has the power to remove an arbitrator, (Civil code art. 733(2)) who fails to use all the reasonable dispatch and diligence in conducting the proceeding. (Art 668 of C. C.) Removal of an arbitrator is the act of removing the same from his/her power to arbitrate the disputant. To revoke the authority of an arbitrator is an extreme remedy which might deprives interest of one party. According to the general accepted principle, arbitrator will be removed from entertaining and handling the issue. Grounds for the removal of arbitrators can be; serious and irreparable misconduct, actual/potential bias, incapacity, where he failed to perform the function of arbitrators, where justice requires so and others.

All the aforementioned discussions are based on the general jurisprudence. In our law under the civil code, which is actually repealed, it confirms with the above discussion. Whereas under the RFC it is not stated about the removal of the arbitrators and the grounds of their removal. So there is a gap in this area of the law. The writers of this paper will recommend latter to fill the gap.

3.8.1.4. Powers and Duties of Third Party

A. Powers - After their appointment, family arbitrators have the power upon the spouses. Their power is recognized both by the civil code and the revised family code. (Mehare Redae RFC commentary p.106) These family arbitrators are empowered by the spouses. Since they are appointed by the free consent of the spouses, the power of the arbitrator emanates from the disputing parties.

When we compare the power of family arbitrators in the previous law and the current law, family arbitrators had more power in the previous. Their power was up to the pronouncement of divorce for serious causes.(RFC Art.121(1)) But this power is revoked by the RFC and here what we have to understand is that, even though their power to pronounce divorce is taken away by the current family law it is impossible to say that family arbitrators have no any role.(RFC Art 121(3)) Indeed, their power is to reconcile or making an effort to reconcile the spouses and to make the spouses to renounce their petition for divorce in case of divorce issues now. Family arbitrators have no any power other than reconciling the disputing spouses for disputes involving in divorce (RFC Art.117). As we can see the RFC family arbitrators have the power to act as mediator as far as their purpose is to reconcile the spouses. They can use all possible meanses to settle the dispute and to keep the sustainability of marriage.

Generally speaking, any attempt of the third party arbitrators to pronounce divorce other than persuading for the conciliation has no legal effect. This is for the fact that marriage is the base fore the society in general and for the family in particular. Therefore, it should not be as such flexible to be dissolved by the decision of third party arbitrators. But some scholars argues to the contrary saying that once we have recognized conclusion of marriage to be made in offices other than the court or notary, it would be justifiable to allow divorce in the same cases.

B. Duties of Third Party Arbitrator - Arbitrators, due to the irony relationship that they have with the spouses, play a vital role in family dispute resolution. Both the repealed provisions of the civil code and the RFC, confers duty upon arbitrators. Hence we will see the duties conferred upon them in some detail in this section. What is expected from the chosen arbitrators to be fulfilled includes keeping the principle of confidentiality and arbitrators are assumed to be neutral.

According to the RFC Art. 83(2), they have the duty to report on their efforts to reconcile the spouses and renounce the desire of divorcing. Regarding this point the repealed law had contained broad duty which is gives them the power of deciding over the fate of the marriage though it is subject to the approval of the court (Civil code Art. 679(1)). Similarly they were duty bound to pronounce judgments that could enabled the parties to solve all disputes arising out of divorce. The means of liquidation to be employed were to be decided by the family arbitrators.

 

Procedure

After the arbitrators are already appointed and they accept the status, the next step is starting the procedure to resolve the family dispute. Under the revised family code there is no requirement as to the acknowledgement of arbitrators’ acceptance for being arbitrator by the dispute. However, the civil code had employed such mechanisms to know the willingness of the arbitrators to arbitrate the dispute. After having appointed the arbitrators, the spouses should submit their choice to the court within 15 days (art.119 (1) of RFC). On receiving the list of arbitrators or the appearance of the arbitrators the court will make a record and give direction as to how reconciliation has to be preceded and to submit the result of the arbitration or the attempt of reconciliation within three months. From this time on wards the work of reconciliation is left to the arbitrators except submitting some reports about their progress.

Even though the revised family code provides for direction as to how to proceed the conciliation, it did not mention even some of the procedures to be followed in the reconciliation process. It seems that it is left to the discretion of the arbitrators and the court. Nevertheless, the procedure most likely has to be in the following manner. The arbitrators appoint a day which is convenient for the disputants in the most probably convenient place. Most importantly the place should not be a place having many persons, for example, market place and the like. After asking them separately about the matter, the arbitrators could start the arbitration in the presence of the spouses. Separate talking with the spouses at this level does not amount to caucus since it is made only at the earliest time and for reconciliation but not for transfer of other information.

If they are not able to decide the issue at that day they may adjourn another day which is convenient to the spouses. But it is not possible to adjourn for more than three months, unless the court orders to do so, (art. 119 of RFC). But lastly if they are not successful in reconciling the spouses, they have no power to pronounce divorce of the spouses rather they only report the result of their attempt to the court without delay (art121 (2) of RFC).

Outcomes and enforcement of the proceeding

A. Outcome of arbitration in family dispute - The outcome of arbitration by arbitrator tells us an important step for the resolution of the dispute among the spouses. If reaching an agreement was impossible, there will be no further step, except the reporting step. The outcome of the arbitration will be either of the following two options:

i) Resolving the dispute

ii) Divorce

i).Resolving the dispute - the main purpose of founding arbitration tribunal is to resolve the disputes among the spouses in amicable way. Because of this reason if a petition is taken to the court for divorce, the court will let them to take their case to the arbitrator of their choice and to reconcile as much as they can. After the process, the arbitrators who dealt the issue may come up with conciliating the spouses or they may not. If the arbitrators successfully resolved the dispute, their decision will be effective and they should report the same to the court.

ii). Divorce - once the arbitrators entertain the case and fails to persuade the spouses to reconcile,  according to the RFC the arbitrators have  no power to pronounce divorce, but it is the court that has the power to deal with the issue of divorce (RFC Art   ). But according to the civil code the arbitrator had this power if there exist a serious cause for divorce (Art 668 of the C. C.).

ADR proceeding are playing a pivotal role to settle family disputes in the administration of justice. Family disputes, particularly disputes among the spouses are the crucial problems in the society. This problem most of the time settle by ADR means’s, especially by arbitration proceedings out of court. Nowadays the process of settling family disputes out of court is very much encouraged because the courts are becoming more and more congested and a case requires a long time to be decided. In return arbitration institutions help the justice system by reducing the burden of courts.

This arbitration proceeding are like a mini-trial court proceedings which are conducted by those arbitrators who are appointed by the common interest of the spouses. This proceeding has its own procedures and enforcement mechanisms in which arbitrators have to follow through out of their effort of settling the disputes. Arbitrators have their own powers and duties which they have to discharge and apply where they conducts the arbitration proceedings. If they are not able to carry out their function competently and diligently, they will be removed from their position.

Last modified on Wednesday, 02 May 2012 13:05