Tuesday, 5 May 2015

Negotiated Agreement

DR. RICHARD SINGSON
Members/the negotiating team
Director:  Catherine/Asingwire.
Human resource manager: Mr. Benoit
Expert in health management system: Mr. Theophile
Marketing officer: Madam Janne
Legal Advisor: Jean de Dieu
Interests of the parties
Shared interests.
Professional success
Making money
Safety and security of the parties
Interest in staying in the same town.
DR. SINGSONs interests
Keeping the doctor WHITTAMORE in the clinic
Enforcing the non-competition clause to the contract.
keeping clients
Enforcement of the penalty clause that is 100% of the remaining two years on the employment contract.
Maintaining daily revenues.

Team for DR. WHITTAMORE
Mr. Whittamore (Pediatrician)
Dentist (Robert)
Pharmacist (Prosecutor Janvier)
Whittamores Lawyer (Prosecutor Minani)
Chemist (Judge Felisie)
Interests of the parties
Shared
Professional success
Earning a living
Safety and security
Operating and staying in the same town
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Opposed interests
Fairview
Keeping Whittamore at the clinic
Enforcement of non-competition clause
Maintaining patients/clients
Enforcement of penalty of 100% for breach of contract
Maintaining daily revenues
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Options for Mutual gains
Mr. Whittamore suggested leaving Fairview and open up another clinic in the same town, however Singson stated that opening up the clinic would lead to breach of contract which attracts penalties as provided there in. However, both parties agreed that for the benefit of maintaining a good relationship they can become share holders in the same new clinic opened such that the interests of both parties are catered for.


NEGOTIATION AGREEMENT
This agreement is made on the 3rd day of April, 2015 by Dr. Andrew Whittamore an employee (Pediatrician) at Fairview Clinic and Dr. Richard Singson the owner of the clinic
Whereas Dr. Andrew Whittamore and Dr. Richard Singson are in conflict of interests
Whereas Dr. Andrew Whittamore wants to leave Fairview clinic before the expiration of his contract and establish his own private medical clinic in the same town
Whereas Dr. Richard Singson wants to keep Dr. Andrew Whittamore at his clinic due to the none competition clause in his employment contract
Whereas Dr. Richard Singson desires to enforce a 100% penalty for breach of contract as per the employment contract
Article 1
Dr. Andrew Whittamore was supposed to work for Dr. Richard Singson at Fairview clinic for a payment (salary) on monthly basis.
Article 2
Dr. Andrew Whittamore is allowed to leave Fairview clinic and establish the same business in the same town
Dr. Richard Singson is entitled to invest 50% shares in the new business (clinic) opened by Dr. Andrew Whittamore
No penalty as earlier agreed in the contract of employment will be enforced on Dr. Andrew Whittamore by Dr. Richard Singson for leave of the clinic before expiry of the contract
Dr. Andrew Whittamore and Dr. Richard Singson will manage the new clinic as a joint venture
Dr. Andrew Whittamore is free to live in the same town and look after his children
Dr. Andrew Whittamore and Dr. Richard Singson must receive profits from the new clinic in equal shares annually
Article 3
Dr. Richard Singson must not enforce the none competition clause against Dr. Andrew Whittamore
Dr. Richard Singson must not enforce the 100% penalty on Dr. Whittamore when he leaves the clinic before the expiration of his contract of employment
Dr. Richard Singson must pay 50% start capital of 100,000,000 million Rwandan Francs equal to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Dr. Andrew Whittamore pay 50% start capital of 100,000,000 million Rwandan Francs equal  to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Failure to pay the start capital in time will lead loss of all rights as a share holder
Dr. Andrew Whittamore must make sure that the conflict between him and his wife does not affect the new business
Dr. Andrew Whittamore must help Fairview clinic in finding another pediatrician to replace him.
Article 4
Both parties must observe the terms of this agreement and in case of any breach the dispute will be settled in mediation
In case of a dispute arising out of this agreement each party must appoint one (1), a qualified doctor of 10 years standing to act as a mediator.
In case the mediation fails the parties must refer the dispute to court
Article 5
This agreement is governed by Rwandan Law
Article 6
The original/genuine version of this agreement is in English

SIGNED by the parties on the 6th day of April 2015

……………………………….                                                          ……………………………….
Dr. Andrew Whittamore  Pediatrician                 Dr. Richard Singson  Owner of Fairview

ADR agreements

Introduction
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.
The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation.  The increased popularity of ADR methods has been due to the overloading of cases in the normal courts of and the disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial.

We will draw much emphasis on looking at the parties’ agreement before taking a decision to go for ADR and after when a final settlement also known as final agreement in ADR is reached.

Mediation Is a voluntary, private and nonbinding process in which a neutral person (the mediator) assists the parties to reach a negotiated settlement. The mediator’s role is more pro active than that of a conciliator but a mediator does not have power to make any decision or award. Mediation is sometimes referred to as assisted negotiation and it employs a problem-solving approach to address conflict rather than the traditional, adversarial method. Mediation allows parties to control the dispute resolution process, rather than having a judge or some other official control it for them. Mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case but rather use their expertise in communication and negotiation to help the parties make effective, informed decisions on their own.

Negotiation
Negotiation is the processes in which parties that perceive one or more incompatibilities between them, try to find a mutually acceptable solution.Negotiation therefore is characterized by voluntariness of the parties where no third party is involved in imposing the resolution or a party forced to participate. Negotiation can involve two, three or dozens of parties and is Non-adjudicative since it involves only the parties and the outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

Arbitration
Arbitration is a procedure applied by parties to the dispute requesting an arbitrator or a jury of arbitrators to settle a legal, contractual dispute or another related issue. Arbitration is characterized by voluntary participation of the parties with the presence of a third party who as a private judge imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.

Parties’ agreement before ADR
Since ADR is a private dispute settlement mechanism, parties are at free will to choose whether to settle a dispute through one of the methods of ADR. As a general rule, in all matters governed by arbitration, court shall not intervene except where the law provides. Which means that an arbitration agreement put in the parties’ contract is binding on them as it forms a contract. Article 64 provides that Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. Similarly an agreement by parties to settle a dispute by mediation is binding on them until it fails then other forms of ADR or court can be involved.

Power to stay proceedings
Mediation and arbitration clauses are now regularly included in commercial contracts in Rwanda as the appropriate mechanism for resolving disputes. The clause usually stipulates that the parties will refer any dispute that arises out of the contract to either mediation or arbitration, where these processes do not result in a settlement the parties are still free to have court proceedings. However important to note is that in arbitration in Rwanda a party can only appeal on the procedural elements but rather not substantive elements of the dispute.

The court before which an action regarding an arbitration agreement is seized shall submit it to the arbitration, if a party so requests, before submitting his or her statements on the substance of the dispute, unless it finds that the agreement is null and void, inoperative or incapable of being performed. Where an action referred to has been brought in a court but before being heard, arbitral proceedings may nevertheless be commenced or continued, and a decision may be taken while the issue is pending before the court. In that case, the action submitted to the court shall be null and void. Similarly if parties had a mediation agreement in their contract courts can distance themselves from hearing such a dispute until a proper mediation process has been concluded.

Stay of proceedings and ADR Clauses
The enforceability of a dispute resolution clause was definitively established by the High Court in Health Service Executive v Keogh, trading as Keogh Software. In this case, the defendant had an extensive software services and maintenance contract with the plaintiff, the HSE, which was at the time of the case in use at approximately 180 sites around the State in connection with radiology, accident and emergency and hospital billing. A dispute arose between the parties, in which the defendant asserted that it had been underpaid by the HSE, and the defendant then ceased to supply the support staff for the software system. The HSE then requested the defendant to supply it with the computer source codes for the software system, which the defendant refused. A contract between the parties included a dispute resolution clause, under which the defendant agreed that the source code, which were held by a third party company, could be released to the HSE ―on the decision of an independent expert whose appointment will be mutually agreed, or, failing mutual agreement, who will be appointed by the President for the time being of the Law Society. The dispute resolution clause also provided that:

The independent expert‘s decision will be final and binding on all parties to this agreement and shall not be subject to appeal to a court in legal proceedings except in the case of manifest error.
Both parties applied to the High Court for interlocutory relief, the HSE seeking a mandatory injunction requiring the defendant to supply the support services contracted for, the defendant seeking to be paid the fees it claimed were owed and to have the dispute resolution clause and expert determination process suspended. Laffoy J stated, in applying the principles set out in the Via Networks case, that there was no reason for the parties to depart from the dispute resolution mechanism provided for in the agreement, and she refused all relief applied for by both parties. She noted that ―an examination of the... agreement clearly demonstrates that its terms are designed to facilitate speedy resolution of a dispute. In other words the principle in these two cases in as much as are English we would wish be instructive in submission, it is clearly stated that where parties agree to use any form of ADR for settlement of a dispute it shall be binding on them, neither party can depart from the earlier agreed settlement mechanism and this has also been the practice in Rwanda.

Severability of mediation and conciliation clauses
In relation to arbitration, the doctrine of severability means that even where the agreement containing an arbitration agreement is alleged to be invalid, the arbitration agreement itself can be valid and thus the question as to the validity or otherwise of the main agreement can be referred to arbitration. In Doyle v Irish National Insurance Co plc, Kelly J held that the arbitration clause survived the voidance of the contract and the defendant was, accordingly, entitled to have the dispute referred to arbitration.
The English Court of Appeal placed a limit on the doctrine of severability in the case of Soleimany v Soleimany in which it was decided that contracts for illegal adventures which are illegal or tainted in their very purpose (such as a contract of co-operation between highwaymen) could not be the subject of arbitration. However, the Court of Appeal in Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors required the parties in this case to proceed to arbitration where one party to the contract containing that arbitration clause had purported to rescind the contract as a whole following allegations of bribery. It was held that if a contract were to be invalid for reasons such as bribery, unless that bribery relates specifically to the arbitration clause, the clause survives and the validity of the contract as a whole is to be determined by the arbitrators, not the court. In doing so, it stressed the severability of an agreement to arbitrate from the larger contract of which it was part.

Similarly in Rwanda as seen in Article 7 of law n°005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters and Article 64 of LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda an arbitration agreement is binding on the parties and is not affected by the validity of the main contract itself. 

After ADR

The enforceability of outcomes is an important feature of dispute resolution processes. A decision of a court is legally binding and is enforceable by the parties to the dispute and enables the final resolution of a dispute. It is important to note that mediation and conciliation processes are not binding in themselves, but agreements reached through those processes can be made binding. For example, a mediated agreement can be in a binding contract, which can then be enforced in court. It has been argued that mediated agreements may prove to be longer lasting than imposed settlements, such as court orders, because the parties have voluntarily participated in drawing up the terms of the agreement and are, therefore, more likely to adhere to the terms of the agreement. Similarly in Rwanda mediation and negotiation final settlements/agreements are not binding on the parties and only become binding when the parties intend to make them so by way of signature hence making a contract.

In Rwanda, An arbitral award, irrespective of the country in which it was made, shall be recognized as binding. However, this shall not be respected if the country in which the award was issued does not respect the provisions with reference to cases decided in Rwanda. Similarly an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued but subject to the conditions of reciprocity of the interim measures taken by arbitral tribunals in Rwanda.

Conclusion

All in all, mediation and negotiation agreement as forms of dispute settlement can be appealed in courts of law in Rwanda but Arbitration is not appealable and a dissatisfied party can only do so where there was gross violation of the arbitration procedures.




BIBLIOGRAPHY
Laws

LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS in Rwanda
LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda
Health Service Executive v Keogh, trading as Keogh Software [2009] IEHC 419
Doyle v Irish National Insurance Co plc [1998] 1 I.R. 89
Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors [2007] E.W.C.A. Civ. 20 (Court of Appeal, January 24, 2007]. See Carey New Guidance on the scope of arbitration clauses (2007) 14(4) CLP 72

Writings

Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)
Alternate Dispute Resolution Handbook at pg.1 (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)
http://www.mediate.com/articles/sgubinia2.cfm
Dispute resolution guide by KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP, 2005 (http://www.klgates.com/files/Publication/d4e79514-1038-414f-8394 7c2c22272645/Presentation/PublicationAttachment/2b825492-c6d1-46d6-b2db 7f913295536a/Dispute_Resolution.pdf
http://www.lawreform.ie/_fileupload/consultation%20papers/cpadr.pdf
http://www.cs.uu.nl/docs/vakken/vm/college9.pdf
http://assets.cambridge.org/97805217/35216/excerpt/9780521735216_excerpt.pdf

Alternative Dispute Resolution

What is ADR?
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.

Advantages for using ADR

It is cheaper
Mediators will commonly claim that mediation is cheaper than going to court. Mediation can be much cheaper than taking legal action as it does not require filing fees in order for a dispute to be lodged like in court where filing fees is a must.

Quicker
Some forms of ADR can be quicker than going to court. If you are involved in a small claim in court, for example, your case can go to mediation sooner than a hearing can be arranged. ADR processes do not follow strict rules of civil procedure and this helps the parties to settle disputes urgently.

Not adversarial
Going to court can risk making a bad situation worse. That’s because the legal system is adversarial – it puts one side against the other, and at the end there is a winner and a loser.
Using ADR like in mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship.

Getting what you want
There is a much wider range of outcomes with ADR than with courts. Mediation and Negotiation may well be more appropriate than court if what you want is an apology, an explanation, or a change in policy or practice by an organisation.

Flexibility
ADR processes are usually more flexible than the court process. Mediators will usually bring both parties together for a face-to-face discussion. However in negotiation, parties will try to negotiate a deal through a series of phone calls. In ADR like negotiation it is by parties’ choice of preference in sorting out a problem either by phone, through letters or emails, or face to face. Whereas court system follows strict rules of procedure that are brought in force by law and cannot be avoided save for circumstances where they have been amended.

Longer lasting
When it works, mediation and negotiation can produce a solution that satisfies both sides. Mediators encourage people in dispute to have creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Confidentiality
Since ADR is a private settlement mechanism and is not done in open the dispute at hand remains private and is not published in public domains like in court system that can be open. This has helped in the protection of the image of investors in commercial matters in Rwanda.

Disadvantages for using ADR
There are some situations when ADR may not be appropriate, and may even be risky for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
Power differences
There may be an imbalance of power between the parties, which could make face-to-face ADR unfair. For example, mediation between an individual and a large organisation such as a local authority or company where the size and resources of the organisation could put the individual at a disadvantage, this doesn’t always mean that mediation is inappropriate, but it’s something to consider.
Urgency
There may be an urgent need (for example if you are threatened with being evicted or losing your home) which requires an immediate legal remedy. ADR does not give interim remedies like injunctions and hence forth party can lose his property in continued violation of his rights even during settlement of dispute in ADR and requires court intervention to stop such violation.
Reluctant opponent
ADR requires both parties to be willing to give it a try, so if the other side is not willing to participate, you might need to go to court instead. The unwillingness to participate delays the process of effective settlement of disputes, because ADR does not have compelling measures to bring by force parties who are not compliant.
No precedent
Agreements reached in mediation do not act as precedents in future cases. They are usually private and confidential.
If you need to establish a legal point that other people can rely on, you may need to go to court.

No ruling on legal rights and entitlements
You cannot get a ruling on your legal rights, including discrimination and human rights, in ADR processes. You can still resolve a dispute about these issues, but you won’t get a decision about whether or not the law has been broken.

Lower compensation amounts
Although arbitrators can make compensation awards, they are often lower than is likely to be achieved in court. Research shows that in arbitration of small claims cases, settlement amounts tend to be lower than amounts claimed. If you need a significant sum of money in compensation, then you might get a higher award through the court.
Binding decisions
Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that you cannot reject the decision if you don’t like it, and you can’t take the claim to court instead. Arbitration in Rwanda can only be appealed on procedural grounds but rather not the substantive elements of the settlement.
Quality control
There are no consistent quality standards or regulation for ADR providers, so it can be hard to know how to choose a good service.
Costly
Arbitration in Rwanda like in international commercial matters where the seat can be in any country of parties’ choice is costly in terms of buying air tickets for participants, reservation of hotels and remuneration of arbitrators. Article 65 provides for costs in Arbitration in Rwanda.
Bibliography
Laws
LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS
Reports
Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)

Alternate Dispute Resolution Handbook (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)