A critical evaluation of judicial mediation in Malawi

Master Thesis

2013

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University of Cape Town

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This dissertation considers the place of mediation within the constitutional framework of Malawi, with particular reference to the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007 (the Commercial Division mediation rules). These rules prescribe the process of mediation that is presided over by the Judges of the Commercial Division. Of particular interest is the question whether the High Court mandatory mediation rules are in keeping with the spirit and purpose of mediation. Further, the research critically examines the current practice of mediation in the Commercial Division. On 18 May 1994 Malawi adopted a Constitution which is founded on various underlying principles and policies. These include a commitment to actively promote the welfare and development of the people of Malawi by adopting and implementing policies and legislation aimed at achieving the peaceful settlement of disputes. In order to achieve this goal an attempt has been made to adopt mechanisms by which differences can be settled through negotiation, good offices, mediation, conciliation and arbitration. In particular, Malawi through its judicial arm of government has adopted mediation as part of the process of settling disputes.3 Further, in 2007, the Malawi judiciary established the Commercial Division to deal with commercial matters. The jurisdiction of the Commercial Division is provided under Rule 5 of the High Court (Commercial Division) Rules (the Commercial Division rules).4 And, through subsidiary legislation the Malawi Judiciary has what are called the Commercial Division mediation rules. Accordingly, it is expected that, except where the rules allow it, every matter that comes before the Commercial Division must first go through a process of mediation. Such a process has to be overseen by Judges who sit in the Commercial Division
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