Introduction
Traditional mediation is one of the main dispute resolution mechanisms in Malawi. A recent report indicates that the majority of Malawians today depend on informal justice systems, including customary law, for the resolution of disputes, as compared to the formal courts. The most frequently used non-state institutions include ankhoswe [family counsellors] and mafumu [chiefs and village heads], who use mechanisms such as arbitration, negotiation, mediation and adjudication to resolve disputes.Footnote 1
The 1994 Malawi Constitution recognizes traditional mediation; under it, every individual has the right to seek redress for disputes through litigation, alternative dispute resolution (ADR) and customary law.Footnote 2 However, although the Constitution recognizes customary law, including mediation, Malawi lacks a comprehensive legal and institutional framework to promote traditional mediation. This lack of sufficient laws and institutions for traditional mediation may result in “uncertain outcomes, gender inequality, lack of transparency, accountability, [and] human rights abuses”.Footnote 3 The absence of institutions results in a lack of monitoring or evaluation of traditional mediation to ensure the quality of justice. The use of customary law mechanisms such as traditional mediation provides alternatives to Malawians to access justice, considering the numerous challenges facing the Malawi judiciary, which include the high cost of litigation, insufficient legal aid, long delays, and a backlog of cases.Footnote 4 Other challenges are the physical inaccessibility of the formal courts, especially in rural areas, underfunding by the Malawian government, insufficient judicial officers, the formal courts’ complex procedures, and Malawians’ low educational levels.Footnote 5
This article seeks to document and analyse traditional mediation in Malawi to determine the extent to which it enhances access to justice. We discuss traditional mediation conducted by chiefs and village heads in Malawi because these people “are an embodiment of the culture, customs, values and practice of the country, including those related to conflict prevention, resolution and peace building”.Footnote 6 The research methodology comprises a combination of a social-legal and a doctrinal methodology. We analyse Malawi’s traditional mediation laws and institutions; we also interviewed 11 chiefs and village heads from five Malawian tribes: Lomwe, Sena, Ngoni, Chewa and Yao. The Ngoni and Sena are patrilineal societies while the Lomwe, Yao and Chewa are matrilineal. The study applied purposive sampling, the most important factor in which was to choose both matrilineal and patrilineal tribes in order to have a holistic view. The years of service as chiefs and village heads ranged from one to 20 years, and the ages of the respondents ranged between 30 and 80 years. The study selected interviews as a research tool because they provide in-depth data concerning the subject matter and enable researchers to hear directly from respondents.Footnote 7 Ethical considerations for the conduct of this study involved obtaining a permit letter from the Faculty of Law, University of Nairobi, where the first author is a PhD law student, to go to the field to collect data. We also observed privacy and confidentiality rules in the conduct of the research by ensuring the anonymity of participants. Respondents were also informed at the time of booking and commencing the interviews that the interviews were voluntary. The study required respondents to sign the forms accompanying the interview schedule to show they consented to the interview. Further, respondents consented to have the interviews recorded. Data was analysed using qualitative content analysis.
The article is divided into three main sections. First, we conceptualize mediation in the Malawian context, before analysing mediation in Malawi’s formal legal framework. The article then discusses traditional mediation practice and makes recommendations.
Conceptualizing mediation in the Malawian context
Folberg and Taylor define mediation as “a process by which the participants together with the assistance of a neutral person or persons systematically isolate dispute issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs”.Footnote 8 However, this definition merely focuses on reaching settlements, not addressing the root causes of disputes, and fails to cover the informality and flexibility of mediation.Footnote 9 This article defines mediation as an informal, flexible and voluntary dispute resolution technique whereby an impartial third party helps parties to reach a mutual agreement. The understanding of mediation depends on whether it is traditional or Western mediation; in general, Western mediation emphasizes individualism and autonomy, while African mediation embodies the collective aspect of dispute resolution.Footnote 10
African mediation
According to Amanda Boniface, African traditional mediation is communitarian in nature; it is a group mediation involving the disputants, mediators, witnesses and the entire community. The whole community takes part in the resolution of the dispute because Africans believe that a conflict affects both the parties and their communities, so any effort towards peace and reconciliation is the responsibility of the entire community. During African mediation processes, every member of the community is allowed to speak.Footnote 11 The mediators in traditional mediation are the elders, chiefs or village heads, who have no formal qualification except the good reputation they enjoy in the community. They have the advantage that they understand the community’s culture and know the disputants because they are part of that community. African mediators play various roles in mediation, including facilitative and evaluative roles. Thus they can facilitate deliberations, make assessments, suggestions and recommendations, clarify positions, promote communication, summarize deliberations and enforce relevant rules.Footnote 12
The main objective of African mediation is to reduce tensions created by the dispute and to reconcile the parties and the community, not to provide retribution or punishment. It aims at maintaining the parties’ and the group’s relationships and restoring harmony in the community. African mediation seeks to address the root causes of disputes. Parties are likely to cooperate with mediation agreements since the entire community has the obligation to implement them.Footnote 13
Western mediation
Jacqueline Nolan-Haley identifies three key features of Western mediation: confidentiality, disputants’ self-determination and mediators’ neutrality. Western mediation empowers the disputants and promotes their autonomy.Footnote 14 For example, the Model Standards of Conduct for Mediators in the United States provide that “self-determination is the fundamental principle of mediation requiring parties in mediation to reach a voluntary, un-coerced agreement”.Footnote 15 In this regard, John Brand et al argue that Western mediation empowers parties to make decisions; the self-determination of parties implies that all involved should freely choose to go to mediation.Footnote 16 Self-determination also implies that disputants freely choose mediators, mediation procedures, the venue and time, and the outcomes, and should have the liberty to “withdraw from mediation at any time”.Footnote 17 Nolan-Haley argues that the principle of self-determination matches Western tendencies that emphasize individualism and autonomy but clashes with the communitarian nature of dispute resolution in Africa.Footnote 18
Second, Western mediation emphasizes confidentiality.Footnote 19 In this regard, the mandatory mediation rules of the High Court of Malawi, which uses Western mediation, provides that matters deliberated in the mediation process shall be confidential.Footnote 20 Similarly, the US Model Standards provide that unless the parties otherwise agree, mediators shall keep information relating to mediation confidential.Footnote 21 Confidentiality implies that mediators and disputants cannot reveal matters from the mediation to any third party.Footnote 22 It makes parties trust the mediation process and the mediators, facilitates openness from the parties in telling their stories and maintains future relationships between the parties.Footnote 23 However, Nolan-Haley contends that the private nature of Western mediation destroys public accountability. She argues that confidentiality is not a value in African mediation because the participants there are the entire community, which makes mediation transparent and accountable. This accountability safeguards the interests of the parties and of the whole community.Footnote 24
The neutrality of mediators is another essential feature of Western mediation.Footnote 25 The US guidelines, for instance, state that “a mediator shall conduct the mediation in an impartial manner”.Footnote 26 Nolan-Haley observes that US mediators generally practise neutrality by abstaining from expressing their opinion or providing counsel to the disputants. However, while some Western mediation programmes try to observe the neutrality of mediators, there is no consensus that mediators should always be neutral; it depends on the mediation style the mediator adopts, whether facilitative or evaluative. Nolan-Haley contends that neutrality is not a virtue in African traditional mediation because the African mediator plays various roles, depending on circumstances and needs. These roles include facilitating the mediation process, expressing his / her opinions where necessary, giving counsel and making recommendations.Footnote 27 The foregoing conceptual framework compares traditional mediation in Malawi to Western mediation practices, but it fails to discuss the extent to which traditional mediation enhances access to justice; it mentions the advantages of traditional mediation but does not mention its disadvantages. The literature also does not discuss human rights issues in traditional mediation.
Mediation in Malawi’s formal legal framework
At the international level, the UN promotes the use of multiple dispute resolution mechanisms. The UN Charter provides that “parties to any dispute shall, first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”.Footnote 28 This clause indicates there is no “exhaustive number of means of settling disputes”;Footnote 29 it recognizes ADR mechanisms, including mediation, but fails to give details about any dispute resolution mechanism.
The major international legal framework for mediation is the Singapore Convention, which aims at recognizing and enforcing international commercial mediation settlements.Footnote 30 This Convention has resolved the challenges that parties previously went through to enforce international mediation settlements, which in most cases were ignored so that parties resorted to instituting lawsuits.Footnote 31 However, the jurisdiction of the Singapore Convention is limited to promoting the use of mediation between states because it only deals with international commercial matters and leaves out other fields in law, including traditional disputes. Other international mediation laws include the UNCITRAL Model Law on International Commercial Mediation and the International Settlement Agreements Resulting from Mediation of 2018. The former is another example of good progress in mediation; however, it is only a template for drafting mediation laws and does not make any obligation on states.
At the continental and regional levels, the only area where Africa makes some effort to use mediation is in political matters;Footnote 32 it lacks any law or institutions at these levels in other fields of law. The lack of laws at these higher levels hinders the growth of the use of mediation on the continent, leads to a lack of harmonization in the practice of mediation and may affect the provision of quality mediation services.
In Malawi, the 1994 Constitution recognizes customary law as one of the possible dispute resolution mechanisms and thus recognizes traditional mediation.Footnote 33 The Constitution also provides for cultural rights.Footnote 34 However, the customary laws apply only if they are not repugnant to justice and morality.Footnote 35 Under the repugnancy clause, customary law is required to be consistent with the provisions of the Malawi Constitution and international law. Section 5 of the Constitution says that “[a]ny Act of Government or any law that is inconsistent with the provision of this Constitution shall, to the extent of such inconsistency, be invalid”. This provision includes traditional mediation laws. Critics argue that repugnancy clauses suppress customary law and give the impression that the Western legal order is superior to customary law.Footnote 36
The Chief’s Act
The Chief’s Act of 1967 deals with traditional dispute resolution and governance by the chief or village head. The Act outlines the hierarchy of chieftaincy, which includes, from the highest position to the lowest, the paramount chief, senior chiefs, chiefs, sub-chiefs, the group village head and the village head.Footnote 37 The language used to refer to some of these positions in the Chief’s Act is not gender-sensitive; it mentions “group village headman” or “village headman”, giving the impression that village heads should always be men, not women. There is therefore a need to use inclusive language.
The Chief’s Act provides for the appointment of chiefs. Malawian chiefs fall under the executive arm of government, and the Act empowers the president to appoint the paramount chief, senior chief, chief and sub-chief.Footnote 38 The president shall ensure that the appointees are those “entitled to hold office under customary law” and have “the support of the majority of the people in the area of jurisdiction of the office in question”.Footnote 39 For someone to be appointed a senior chief, they must first be a chief. Further, fellow chiefs in his / her area should find him / her suitable for the position of senior chief under customary law.Footnote 40 The president may also appoint someone a sub-chief if a particular chief asks for a sub-chief; the president is required to indicate in his / her appointment the jurisdiction of the sub-chief.Footnote 41 The Act further provides that a paramount chief, senior chief, chief or sub-chief may appoint advisers to help them in their work.Footnote 42 It also empowers chiefs to appoint village heads.Footnote 43
Under the Act, the functions of the chiefs and village heads include preserving public peace, carrying out customary law functions, assisting the government in collecting tax, and helping the district commissioner in administering the district.Footnote 44 The Act explains in detail the duty of the chief in assisting the executive arm of government in administration, but it fails to give details about the judicial function of the chief and village head. It also fails to provide for the training of chiefs and village heads in dispute resolution, ethical standards for traditional mediators, enforcement mechanisms for mediation settlements or monitoring and evaluation structures, and it does not mention the objectives of dispute resolution in customary law or the advantages of mediation, including its cost-effectiveness, speed, ease of access and the simplicity of procedures. A mention of the objectives and advantages of customary law would help Malawians to appreciate traditional mediation. Further, the Chief’s Act does not set up institutions to promote traditional mediation, such as mediation committees, nor mechanisms to promote public awareness of it.
Malawi’s traditional mediation practice: Key features, benefits and challenges
Key features of traditional mediation
Compared to Western mediation, data from the field reveals that the key features of traditional mediation in Malawi are its voluntariness, communitarian nature, party semi-autonomy, semi-confidentiality, informality, flexibility and non-neutrality.
Traditional mediation’s voluntary nature
Our respondents explained that Malawi’s traditional mediation is voluntary, meaning that it promotes access to justice. Commentators also argue that mediation promotes access to justice when it is voluntary.Footnote 45 Not all matters in customary law in Malawi are resolved through mediation; some are resolved through negotiation, arbitration and adjudication at the traditional courts and by the judiciary. Frank Sander argues that the availability of multiple mechanisms to resolve disputes enhances access to justice because parties choose the most suitable mechanism.Footnote 46 Carrie Menkel-Meadow argues that not all matters can be resolved through one dispute resolution mechanism due to differences such as “different kinds and numbers of parties, issues, structures of disputes and legal matters”.Footnote 47 In Malawian customary law, parties are free to choose mediation or any other suitable dispute resolution mechanism. Referral to mediation is by the parties, chief or village head. Although chiefs and village heads recommend suitable cases to go for mediation, the parties reserve the right to accept or reject the recommendation.
The practice of traditional mediation in Malawi is unlike the modern Western practice such as court-annexed mediation, which may have mandatory mediation programmes. For instance, Western mediation as practised in the High Court of Malawi is mandatory, because parties are forced to go for mediation before trial in civil matters.Footnote 48 In Msindo v National Bank of Malawi, the court confirmed that mediation in the High Court of Malawi is compulsory.Footnote 49 Similarly, in other jurisdictions, some mediation programmes are mandatory. In the US, mandatory mediations are ordered by statutes or judges who exercise discretion when referring particular cases to mediation.Footnote 50 In Ghana, the Alternative Dispute Resolution Act of 2010 permits courts to refer a case to mediation if the court finds it appropriate.Footnote 51
Proponents of mandatory mediation argue that it is necessary because it validates parties who may want it but who avoid initiating it for fear they will appear weak, helps the parties to appreciate the benefits of mediation and brings about public awareness of mediation.Footnote 52 Making mediation mandatory increases the number of cases mediated, because voluntary mediation has low uptake. To illustrate this, at one point, out of 4,500 cases in England’s London county courts in which parties were free to choose mediation to resolve their disputes, only a few disputants (160 cases) freely chose mediation.Footnote 53 However, when England passed the Civil Procedure Rules, which authorized courts to encourage parties to use mediation and imposed sanctions where parties did not cooperate without good reasons, cases going to mediation increased by 141 per cent.Footnote 54
Supporters of voluntary mediation reject it being mandatory because it violates party self-determination.Footnote 55 Colleen Kotyk contends that “the very premise of mediation is its voluntary nature … When a court or statute mandates mediation, however, a cornerstone of its foundation is removed, causing serious structural flaws.”Footnote 56 Unlike litigation, which disempowers the parties so much that they are passive participants and are not in full control of their case, in mediation, “you are in control of what is happening to you”.Footnote 57 The voluntariness of mediation means parties are free during the whole of the mediation without being forced at any point in the process or before it; parties freely choose to go for mediation, to choose the mediators, mediation procedures, venue and time, and have the liberty to “withdraw from mediation at any time”.Footnote 58 The parties themselves must agree with the mediation settlement freely.Footnote 59 In Halsey v Milton Keynes General NHS Trust, the court emphasized that mediation is a voluntary process, and stated that courts should not impose mandatory mediation if parties are unwilling because that violates their right to a trial.Footnote 60 In Morrow v Chinadotcom Corp, the court emphasized that voluntariness is crucial for the success of a mediation process because parties are likely to cooperate to reach an agreement if they willingly enter the process.Footnote 61
Although the Chief’s Act fails to state whether mediation in customary law is voluntary or mandatory, our respondents stated that Malawi’s traditional mediation is voluntary. Although traditional mediation is a group mediation, this research found that traditional mediation takes place only when the parties themselves freely choose it.Footnote 62 Moreover, the parties freely choose the mediators, time, venue and outcomes. As a voluntary process, traditional mediation promotes access to justice because it safeguards the self-determination of the parties, promotes procedural justice, “makes the parties more willing to reach an agreement”, increases settlement rates and produces durable settlements.Footnote 63 The voluntary aspect makes disputants satisfied with the mediation, ensures compliance with settlements and safeguards the parties’ right to trial because the parties who want to go for trial are able to do so.Footnote 64
Traditional mediation’s communitarian nature
The second feature of Malawi’s traditional mediation is that it is communitarian. While Western mediation emphasizes individualism and autonomy, African mediation embodies the collective aspect of dispute resolution.Footnote 65 For instance, participants in mediation at the High Court of Malawi, which is Western in style, are the parties, their lawyers and the mediators.Footnote 66 Relatives and friends of the parties are not allowed to attend.
The Chief’s Act does not mention anything about participants in Malawi’s traditional mediation. However, data from the field shows that traditional mediation is communitarian, although not to the threshold asserted by Nolan-Haley and Boniface. Nolan-Haley argues that the collective nature of dispute resolution in Africa implies that parties and their communities make decisions.Footnote 67 Boniface contends that African mediation allows the entire community to take part, and everyone is free to speak during the mediation process.Footnote 68 Traditional mediation in Malawi is communitarian but does not follow the above assertions; the participants differ according to the choice of each chief or village head. First, some chiefs and village heads allow the entire community to take part and allow every participant to speak during the mediation. In this case, the participants are the parties, their relatives, the village head or chief, counsellors and witnesses. This practice is fully communitarian and consistent with the assertions above. Second, some chiefs and village heads allow the entire community to attend mediation sessions but restrict speaking to a few individuals, including the parties, parents, mwinimbumba [the elders of the extended family], elderly members of the community and the people who know the matters at hand. Although this mediation practice is communitarian for involving the entire community, it fails to meet the threshold asserted by Boniface because not everyone is allowed to speak. Both these practices, however, enhance access to justice. Allowing every party to speak during the mediation has the danger of making it adversarial but enables the parties to get to the root of the matter and come to durable solutions, which enhances access to justice.Footnote 69 Furthermore, allowing the entire community to attend mediation sessions may make the enforceability of the confidentiality rule difficult, but it makes the mediation accountable and transparent.Footnote 70 This includes situations where the parties are not allowed to speak. Parties and the mediators are likely to protect public values because the entire community is watching. Moreover, since the entire community is available, it may ensure that the parties comply with the mediation settlements.Footnote 71
Third, other chiefs and village heads limit the number of participants from either side. For instance, a Lomwe village headman said he allows the parties’ parents and mwinimbumba to participate in mediation. A Yao chief stated that he allows only two or three relatives of either party – those that the parties recommend, who know the case and who can assist in resolving the dispute. Every participant is free to speak during the mediation, but these mediations are not fully communitarian. Fourth, some chiefs and village heads do not allow any participants apart from the parties and the mediators, not even witnesses. This mediation practice is not communitarian and resembles Western mediation.
Party semi-autonomy in traditional mediation
On self-determination, Nolan-Haley argues that Western mediation empowers disputants and promotes their autonomy.Footnote 72 Self-determination entails the freedom of the parties to choose mediation, the procedures, mediators, venue and outcomes, and the liberty to “withdraw from mediation”.Footnote 73 The self-determination of the parties is a foundational principle of mediation. It enhances access to justice because it promotes the active participation of the parties in the dispute resolution, enables the parties themselves to make decisions to resolve disputes and gives wider options to the parties to resolve disputes, including making apologies.Footnote 74 Xavier contends that self-determination promotes access to justice because it enables parties to reach win–win remedies that meet their needs and interests.Footnote 75 Since the parties freely make the settlements themselves out of consensus, mediation promotes a non-confrontational setting for resolving disputes, which preserves relationships and promotes access to justice.Footnote 76
However, some commentators argue that self-determination is a virtue only in Western mediation, not in African traditional mediation, because dispute resolution in Africa is communitarian.Footnote 77 Although the Chief’s Act does not mention anything about self-determination, this research has found that it is a value, despite the communitarian nature of Malawi’s traditional mediation. This finding challenges the assertions in the literature that self-determination is not important in traditional mediation. Some practices in traditional mediation in Malawi show self-determination: First, parties freely choose to go for mediation but are encouraged by family members and the chief or village head. Second, although the chief or village head usually acts as a mediator when the parties bring cases to him / her, the parties have the freedom to ask the chief or village head to give them someone else to conduct the mediation. This means the parties have the freedom to choose their mediators. Third, chiefs and village heads allocate the dates, times and venues for the mediation with the consultation of the parties. Fourth, parties to the traditional mediation freely make decisions to resolve the dispute, without being forced by anyone. Although sometimes the entire community participates, these participants only assist the parties to make decisions; they do not force the parties to settle. The liberty of the parties to choose mediation and the mediators, venue, time and outcome promotes the self-determination of the parties and promotes access to justice.Footnote 78
However, in some cultures in Malawi the attendance of many participants and their contributions during the mediation may influence the parties to resolve in a particular way. In this case, it can be argued that there is no strict adherence to party autonomy. Moreover, our research found that sometimes parties go kunsengezi [to a private place] with their relatives to decide the way forward. One can argue that such practices show that traditional mediation offers semi-autonomy.
Semi-confidentiality in traditional mediation
Western mediation values confidentiality. Commentators argue that confidentiality is necessary for the success of mediation proceedings, provides parties with the opportunity to avoid publicity and increases the chances for the parties to settle because they can discuss matters freely.Footnote 79 Confidentiality promotes openness and honesty in mediation: parties share more about their cases because they do not fear such information will be used against them in a subsequent litigation.Footnote 80 In Cutts v Head, the court stated that parties that wish to settle in mediation “should not be discouraged by the knowledge that anything that is said in the course of such negotiations … may be used to their prejudice in the course of proceedings”.Footnote 81 In Foxgate Homeowners’ Association v Bramalea California, Inc, to promote frank participation in mediation, the court rejected admitting the evidence of a mediator who stated that one of the parties did not cooperate during the mediation and acted in a way that sought to frustrate the process.Footnote 82
While the principle of confidentiality is an important virtue in Western mediation, Nolan-Haley argues that it is not a virtue in African traditional mediation due to the latter’s communitarian nature.Footnote 83 However, this study found that the confidentiality of mediation is a virtue in traditional mediation in Malawi, although perhaps not to the level of Western mediation. All the respondents agreed that confidentiality is important for the success of the mediation. A Yao chief, for instance, said he tells everyone at the mediation to keep chinsinsi [confidentiality]. Similarly, a Lomwe chief said, “Chinsinsi ndichofunika” [confidentiality is important]. The existence of a confidentiality rule in traditional mediation enhances access to justice because it provides parties with the opportunity to avoid matters being made public to everyone, promotes open and honest discussion among the parties and enables them to have trust in the mediation proceedings.Footnote 84 However, a challenge is that it is difficult to enforce the confidentiality rule, especially where the entire community is allowed to take part. In this case, one can argue that traditional mediation is semi-confidential. Although traditional mediation values confidentiality, it is almost impossible to enforce it when the entire community participates.
While confidentiality is necessary, it has its disadvantages. Critics contend that confidentiality makes mediation unaccountable to the public.Footnote 85 Since the society is unable to evaluate the mediation proceedings and outcomes, it cannot establish whether the procedures and outcomes are fair and just. There is a real danger that weak parties may not be protected because of the confidentiality rule.Footnote 86 The confidentiality of mediation also hinders the generation of precedents from which the society can learn and the development of law.Footnote 87
The above challenges sometimes necessitate the provision of exemptions to the confidentiality rule in mediation. For example, the principle of confidentiality is not applicable where there is a waiver by the parties.Footnote 88 In Chantrey Vellacott v Convergence Group plc, parties agreed to waiver confidentiality to allow the court to analyse the mediation deliberations and make a determination as to the costs.Footnote 89 The court found that the behaviour of the defendant during the mediation was wrong and awarded the costs to the plaintiff. Furthermore, confidentiality may not apply where there is a legitimate interest in public accountability and transparency or where there is professional malpractice by the mediator or one of the participants.Footnote 90 The confidentiality rule is exempted where due process rights in the mediation are violated, where a party issues threats and intimidation to the other party or where a party’s behaviour is deceptive, misleading or inconsistent with fair-trading legislation or trade practices.Footnote 91 It also does not apply where a party makes a fraudulent representation, where a party’s behaviour is criminal or where the formal courts seek to determine the existence of a mediation settlement or its terms.Footnote 92 In Tomlin v Standard Telephones & Cables, the court held that where there are arguments about the existence of a mediation agreement, the court will look at the mediation proceedings to make such a determination.Footnote 93 While confidentiality is important in traditional mediation in Malawi, the Chief’s Act does not mention it. Malawi’s traditional mediation may learn from the above exemptions to the confidentiality rule.
The informal and flexible nature of traditional mediation
Unlike Western mediation, such as the court-annexed mediation of the High Court of Malawi, which is semi-formal and relatively inflexible, Malawi’s traditional mediation is flexible and informal. In court-annexed mediation, for example, the judge-mediator decides the date and venue, prepares the procedures for mediation and gives the parties time limits. The judge-mediator also imposes sanctions for non-compliance. Trials in Malawi have complex evidential and procedural rules and use complex legal jargon, which may hinder access to justice to some Malawians due to their low levels of education.Footnote 94 Similarly, the consent order is written in English.Footnote 95
Traditional mediation, on the other hand, is flexible and informal because chiefs and village heads allocate the time, date and venue of the mediation with consultation with the parties. The mediation does not take place at the traditional court of the chief or village head where s/he conducts adjudication; it takes place elsewhere so that parties do not confuse the mediation with adjudication. Further, unlike judges, who put on gowns during a trial, which may intimidate the parties, chiefs and village heads have no specific regalia; they put on ordinary clothes. This practice may help the participants not to feel intimidated and may help them to speak freely; they are also not forced to dress in a special way. Chiefs and village heads also do not impose sanctions for non-compliance; the imposition of such sanctions can be an obstacle to access to justice.Footnote 96 Moreover, the parties in traditional mediation are not subjected to strict rules of evidence, and the mode of communication is through vernacular languages, with no legal jargon. All this promotes access to justice. As Ojelabi argues, access to justice means that matters are resolved “as simply as possible”;Footnote 97 it also entails having a dispute resolution mechanism which is user-friendly.Footnote 98 Rigid procedural rules, including rules of evidence, can be an obstacle to access to justice.Footnote 99 In Malawian customary law, in contrast, mediation procedures are simple, user-friendly and flexible.
The non-neutrality of traditional mediators
The impartiality of mediators is another principle of mediation. Both Western and traditional mediation in Malawi value the impartiality of mediators. Mediators should know their own biases and avoid such biases in their mediation.Footnote 100 The requirement of the impartiality of mediators is consistent with international law: the Universal Declaration of Human Rights (UDHR) provides that access to justice entails ensuring that “everyone has the right to an effective remedy by the competent national tribunals” and “a fair and public hearing by an independent and impartial tribunal”.Footnote 101
In traditional mediation in Malawi, the Chief’s Act does not mention anything about the impartiality of mediators, and there is no guidance on what chiefs and village heads should do to ensure impartiality. However, the impartiality of the mediators is crucial. All our respondents stated that one of the qualities of a good mediator is that s/he should be munthu osakondera [a person who is impartial]. They explained that one of the factors that make parties not settle at mediation is mediator partiality. To ensure impartiality, chiefs and village heads recuse themselves where there is conflict of interest, for example if one of the parties is their relative. A Chewa senior group village headman said he requests his counsellors to mediate the matter in such circumstances, while a Yao chief said he invites another chief to conduct the mediation.
Traditional mediators in Malawi are impartial but not neutral. This finding resembles the literature review. Nolan-Haley argues that while Western mediation values mediator neutrality, African mediation does not value this. African mediators play various roles in the mediation process depending on circumstances and needs, including facilitating mediation processes, expressing their opinions, giving counsel and making recommendations.Footnote 102 Similarly, in traditional mediation in Malawi, mediators play various roles and mix mediation styles. For example, a Lomwe village headman said the duty of traditional mediators is kuwaongolera [to guide] the parties, implying facilitative mediation, which aims at assisting the parties to make decisions.Footnote 103 A Yao chief stated that sometimes he makes recommendations in mediation, pointing to evaluative mediation.Footnote 104 Other respondents stated that traditional mediators seek “kulunzanitsa anthu amene ayambana” [to reconnect people who have quarrelled], “kubweretsa mtendere” [to bring peace] and “kuopa nkhondo” [to avoid fighting], pointing to transformative mediation. As Folger and Bush argue, a dispute affects the interaction between the parties; the transformative mediator seeks to remove hostilities and restore positive communication between them.Footnote 105 Thus chiefs and village heads apply a mixture of mediation styles to ensure access to justice. The evaluative model may undermine the self-determination of the parties, but may resolve the dispute expeditiously and increase settlements.Footnote 106 A survey in the US showed that the use of evaluative skills leads to more settlements.Footnote 107 The facilitative and transformative models may delay resolving disputes but promote party autonomy in mediation.Footnote 108
The non-neutrality of traditional mediators in Malawi seeks to ensure substantive and procedural justice. Commentators contend that mediators are always required to be impartial but not necessarily neutral.Footnote 109 There is no point in mediators being neutral if injustice is likely to happen.Footnote 110 Ojelabi and Sourdin argue that mediators should, for example, “address power imbalances, abuse issues, participant vulnerability and other matters which may result in injustice”.Footnote 111 Gunning explains that power imbalances arise due to factors including a lack of finances, lack of legal representation, lack of legal knowledge, sickness, poor education and a language barrier.Footnote 112 These factors have a large impact on a party’s capacity to negotiate equally with the other party. In such circumstances, it is incumbent upon mediators to balance the power relationships.Footnote 113
Mediators must ensure just outcomes (substantive justice) by promoting informed consent.Footnote 114 This includes dispute resolvers helping parties to choose suitable dispute resolution mechanisms, informing the parties about laws and rights, and ensuring legal knowledge, legal representation and access to information.Footnote 115 Legal knowledge and access to information require that states promote the right to education.Footnote 116 Furthermore, mediators must ensure procedural justice by ensuring the use of codes of conduct for lawyers and mediators, promoting mediator skills, ensuring that the parties understand the mediation process and participate freely, and giving all parties the opportunity to be heard.Footnote 117 Mediators should ensure that the parties produce the outcomes and that the mediation process remains voluntary while promoting respect and dignity.Footnote 118
The benefits of traditional mediation
Traditional mediation has many advantages compared to Western mediation. First, it is more expeditious. The general argument in support of any mediation is that it minimizes costs, time and caseloads, which ultimately promotes access to justice.Footnote 119 However, research is inconclusive as to whether Western mediation reduces costs and time. One US study showed a quicker resolution of disputes through mediation than through the courts; similar cases taken to mediation were concluded seven weeks before the court made its judgment.Footnote 120 However, a study conducted by Kuhner on court-annexed mediation in the US found that mediation did not save time.Footnote 121 Similarly, in Malawi, reports show that mandatory mediation in the Commercial Division of the High Court has not led to a speedy disposal of cases.Footnote 122
By contrast, traditional mediation in Malawi is always expeditious. A Yao chief said mediation “sizitenga nthawi” [is fast]. Chiefs and village heads said the speed depends on the type of matter, its complexity and the number of witnesses. Some cases are concluded within 30 minutes, one hour or a day; sometimes it may take one or two weeks or at most a month. There are times when the chief or village head adjourns the case to another session on another day to help the parties reflect. This quick resolution of disputes promotes access to justice. The European Agency for Fundamental Rights contends that delay in resolving disputes is tantamount to a denial of justice, and international law provides that access to justice entails expeditious dispute resolution.Footnote 123 Traditional mediation complements the efforts of Malawi’s formal courts, which have delays. Kanyongolo reports that cases take too long to be completed at trial in Malawi and observes “that court proceedings are characterized by long delays at all stages, including in delivering judgment after finishing hearing the case”.Footnote 124 In Katte Klitsche de la Grange v Italy, the court held that trials should be completed within a reasonable time, which means that there should not be delays in carrying out the trial and that any delays deny parties access to justice.Footnote 125
Second, traditional mediation is more accessible than Western mediation. International law provides that access to justice entails having institutions of dispute resolution that are easily reachable.Footnote 126 In this study, respondents said that traditional mediation is more easily accessible than the formal courts. The Malawi judiciary has an insufficient number of judges, magistrates and court buildings in the rural areas where 85 per cent of Malawians live.Footnote 127 Many courts in the rural areas “are poorly resourced, poorly managed and offer a limited range of services”; for example, some lower-level magistrates’ courts are not operational or have limited jurisdiction.Footnote 128 Public transport in rural areas is expensive and irregular, and the roads are bad. The lack of sufficient courts in villages makes trials and mandatory mediation unavailable to most Malawians. By contrast, traditional mediation is readily available to everyone, and mediators are sufficient in number. Parties to traditional mediation do not have to travel long distances because mediation takes place in their own locations.Footnote 129
Third, traditional mediation is cheaper than Western mediation and litigation. Studies on Western mediation are not conclusive as to whether it reduces costs: some reports show that it does, for instance in Northern California, a divorce case takes an average of USD 5,234 (including the lawyer’s fees) to be completed through mediation, while litigation takes an average of USD 12,226.Footnote 130 However, a study carried out by McAdoo and Welsh in Minnesota discovered that court-annexed mediation did not reduce costs.Footnote 131 Similarly, another study showed that in Michigan, mediation increases costs for litigants but reduces costs for the courts.Footnote 132 Another study on court-annexed mediation in the US, conducted by Kuhner, found that mediation did not save costs for the parties.Footnote 133 Some US studies reveal that court-annexed mediation is affected by the same administrative complexities and costs as litigation.Footnote 134 In Malawi, the mandatory mediation programme at the Commercial Division of the High Court does not show reduced costs.Footnote 135 By contrast, traditional mediation is cost-effective and promotes access to justice; it is always cost-effective because parties do not pay the mediator, mediation settlements do not usually involve any payment but forgiveness, any compensation payments are small amounts, and there are no lawyers to be paid. Since the parties usually reside in the same location, there are no transport costs.
Commentators argue that the high cost of litigation makes access to justice impossible because many people are too poor to afford it.Footnote 136 The delays associated with litigation also result in high legal costs, and high court fees violate access to justice.Footnote 137 In Malawi, most people are not able to afford the costs, including legal representation fees and transport costs for the parties and the witnesses.Footnote 138 Although international law requires parties to have legal representation, poor people in Malawi do not have this, which may lead to unfair court decisions and settlements in the mandatory mediation of the High Court of Malawi.Footnote 139
Fourth, traditional mediation focuses on the maintenance of relationships more than Western mediation does. Proponents of mediation contend that it preserves relationships: the Centre for Democracy and Governance argues that it can bring community members together and can help to enhance social harmony.Footnote 140 While litigation is adversarial because it “polarizes parties, creates additional rifts and otherwise strains relationships to a point that future dealings are difficult if not impossible”, mediation is not combative.Footnote 141 Disputants come up with the decision together, which increases the possibility that parties will continue their relationship. As such, commentators argue that mediation is important in disputes where the maintenance of relationships matters, including family, employment and commercial relationships.Footnote 142
Unlike Western mediation, such as the judge-led mediation of the High Court of Malawi, which emphasizes the reduction of caseloads, time and costs for resolving disputes,Footnote 143 African traditional mediation focuses on the reconciliation of parties and the maintenance of peace and relationships. The objectives of customary law are reconciliation, social harmony and the maintenance of relationships, so compensation is the preferred sanction, not imprisonment, because the latter breaks communities while compensation maintains contacts.Footnote 144 Chiefs and village heads explained that the main objectives of traditional mediation in Malawi include ensuring “mtendere” [peace], “kuyanjanitsa anthu” [reconciling people] and ensuring the parties in the disputes live “ngati anakamodzi” [like one family]. Traditional mediation also seeks deterrence. In this regard, a Lomwe village headman said that chiefs and village heads want in mediation “timudzudzule asadzabwerezerenso” [to rebuke the culprit not to commit the offense again]. One Lomwe group village headman said that mediation “mumakhala ngati mukulimbikitsa mgwirizano wa anthu” [strengthens people’s relationships]. Xavier argues that the ability of mediation to promote non-confrontation in dispute resolution and preserve relationships enhances access to justice.Footnote 145
Challenges facing traditional mediation
Traditional mediation faces many challenges, which may reduce access to justice. First, it discriminates against women; this resonates with the general criticism against mediation that it may not protect the parties’ legal rights, including the rights of weaker parties.Footnote 146 Chiefs and village heads in Malawi’s traditional mediation lack statutory and constitutional knowledge on human rights, which may reduce the quality of justice because they are incapable of advising parties about their rights. A 2000 report by Scharf and a 2006 article by Kanyongolo showed discrimination against women in Malawian customary law.Footnote 147 Kanyongolo, for example, observed that traditional courts are dominated by men as leaders. The current study found that while there are some women chiefs and village heads, the majority of them are men. Similarly, a report on customary law in Southern African countries, including Malawi, showed that traditional courts do not consider men and women equal before the law and are biased against women.Footnote 148
In our research, respondents acknowledged that some Malawian chiefs and village headmen favour men in matters to do with gender violence, for example cases of domestic violence where a husband beats his wife. Some chiefs and village headmen say that this is “mankhwala a banja” [medicine for the marriage] and that the wife should not complain; they dismiss such cases. This is discrimination against women, which denies justice to them. Such practices violate international and national laws which promote equality; the UDHR provides that “all human beings are born free and equal in dignity and rights”, while the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) provides that “every woman shall have the right to dignity inherent in a human being and the recognition of her human and legal rights”.Footnote 149 Similarly, the International Covenant on Civil and Political Rights provides that everyone shall enjoy rights without discrimination under any ground “such as race, colour, sex, language, [and] religion”.Footnote 150 The UDHR advocates for the abolition of discriminatory customary practices against women and guarantees women’s rights in marriage.Footnote 151 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also prohibits discrimination against women, and prohibits any discrimination in marriage, guarantees equal rights for husbands and wives, and requires states to abolish customary practices which discriminate against women.Footnote 152 The Maputo Protocol obliges member states to “combat all forms of discrimination against women through appropriate legislative, institutional and other measures”, prohibits violence against women and requires states to take measures to protect women from violence; it also guarantees equal rights for husbands and wives in marriages.Footnote 153 Similarly, the Malawi Constitution prohibits discrimination against women and provides that spouses in marriage “shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation”.Footnote 154
This means that men and women should be treated equally when they approach traditional mediators in Malawi. Telling wives to endure gender violence because it is mankhwala a banja violates international and constitutional law. To ensure justice in traditional mediation, the Centre for Democracy and Governance states that traditional norms must contain reasonable standards of justice which avoid discrimination against certain people in society.Footnote 155 Bagshaw recommends that mediators should make efforts to deal with power imbalances “both within the mediation process and within the culture, context and structures within which the mediation takes place”, ensuring that the rights of weaker parties are not infringed and protecting the weaker parties from settling for less.Footnote 156 Kanyongolo recommends the training of chiefs and village heads on human rights issues.Footnote 157 Finally, if it is not possible for mediation to offer justice, parties should resort to other dispute resolution mechanisms.Footnote 158
Second, there is a lack of training for traditional mediators. Chiefs and village heads are not trained in mediation at their inauguration and do not receive ongoing formation. This lack of training may reduce the quality of the justice obtained. International law provides that access to justice entails the existence of competent, impartial and independent dispute resolvers.Footnote 159 On Malawi’s traditional mediation, our respondents said that mediators require certain qualities to be good: a mediator is expected to be “munthu osakondera” [someone impartial], “wanzeru” [wise], “zinthu amazitsata bwino” [someone who follows issues well], and “wantima woupeza” [someone who is calm], “wachilungamo” [just], “osunga chinsinsi” [confidential], “wambiri yabwino” [with good reputation], exemplary, humble and respectful. To ensure such qualities in mediators, there is a need for training.
The success of mediation depends on the competence of the mediators.Footnote 160 Mediators should be individuals who are well respected and not involved in scandal, corruption or criminality.Footnote 161 For example, in Asia–Pacific countries, respected elders of the community conduct traditional mediation.Footnote 162 China’s People’s Mediation Committees, Sri Lanka’s Mediation Boards and Taiwanese mediation experiences are attributed to respected local mediators.Footnote 163 Roxdeiczer and Campa argue that having a good mediator enhances confidence in mediation programmes.Footnote 164 A study carried out by McAdoo and Welsh in Minnesota found that the qualification of the mediator contributed to the success of the mediation.Footnote 165 The European Commission for the Efficiency of Justice says that “unqualified mediators can damage the reputation of the profession in the eyes of the general public and reduce the rates of recourse to mediation”. It proposes the training and accreditation of mediators, accreditation bodies, maintaining a list of registered mediators, having continuous professional development and having disciplinary bodies with the authority to suspend or remove a mediator from the list of registered mediators.Footnote 166
Third, traditional mediation in Malawi lacks a comprehensive legal and institutional framework; the Chief’s Act is not comprehensive. Traditional mediation lacks guidelines for the conduct of mediation, ethical codes for mediators, mediation committees to train and accredit traditional mediators, and structures for the evaluation and monitoring of mediation. This lack of laws and institutions results in other challenges: A Lomwe chief said some parties like to “kudelera” [look down upon] the mediator, which results in non-compliance with mediation settlements. Traditional mediation lacks strong measures to deal with those who do not comply with mediation agreements and lacks measures to address breaches of ethical codes by chiefs and village heads.
Fourth, chiefs and village heads in Malawi have been criticized for exercising both executive and judicial powers. Since they are under the control of the president and at the same time resolve disputes, there is a lack of separation of powers. Chiefs and village heads may be used by government officials selfishly. Since the president appoints, dismisses and decides the salary of the chiefs and village heads, chiefs tend to rely on the president for their survival and show loyalty to the sitting president and his or her government or political party.Footnote 167
Fifth, chiefs and village heads have poor salaries. At the time of the interviews, between 2021 and 2023, the chief received MWK 100,000 (USD 98) per month, while the senior group village head received MWK 20,000 (USD 19.60). Village heads received only MWK 10,000 (USD 9.80) per month. Respondents reported that small salaries make some of the chiefs and village heads engage in bribery and corruption. The Centre for Democracy and Governance contends that customary law should avoid corruption in order for parties to trust the processes. It argues that corruption can increase costs for parties and diminish the possibility of securing a mediation settlement.Footnote 168 In our research, some interviewees stated that one of the factors that makes parties fail to settle is when mediators are biased, and bias may come in if chiefs or village heads receive bribes. To avoid corruption, the Centre for Democracy and Governance asserts that mediators should get some financial or material support even when they are volunteers.Footnote 169 Increasing salaries for chiefs and village heads may help to reduce cases of bribery.
Sixth, Malawi lacks any evaluation and monitoring of traditional mediation. There is no institution in place to monitor the processes and outcomes to check whether they promote justice. There has never been any evaluation of traditional mediation by the Ministry of Local Government, under which chieftaincy falls, or by NGOs. In other jurisdictions, for example in the US, ADR coordinators monitor mediation sessions and ensure their evaluation. The ADR coordinators prepare questionnaires for the parties and the lawyers to sign after the mediation process.Footnote 170 Chiefs and village heads can make arrangements to hear feedback from the parties about mediation sessions. Roxdeiczer and Campa state that it is always important to measure the performance of mediation programmes to establish whether or not they meet objectives. The evaluation should determine whether the mediation reduces costs and delays and improves relationships. All this should be established through statistics.Footnote 171
Recommendations
This article makes the following recommendations to improve traditional mediation in Malawi: First, Malawi’s Parliament should repeal the Chief’s Act and enact comprehensive legislation known as the Traditional Mediation Act. The proposed legislation should explain the matters for traditional mediation, referral to mediation, the roles of chiefs and village heads, mediation procedures, mediators’ ethical codes, and enforcement mechanisms for mediation settlements. The Act should further explain the objectives of traditional mediation, its advantages and the principles of mediation, including the self-determination of parties, confidentiality, flexibility, informality and neutrality. Second, Malawi must establish traditional mediation institutions and programmes. The Ministry of Local Government should set up a Traditional Mediation Board to oversee traditional mediation. Third, we recommend the training of chiefs, village heads and their counsellors in mediation. The Traditional Mediation Board should spearhead the training. People should receive training in mediation at the time of their inauguration as chiefs and village heads and should receive ongoing formation. The training should include human rights, ethics and the concept of mediation. The Traditional Mediation Board should put in place measures to address breaches of ethical codes by chiefs and village heads. Fourth, traditional mediation should be monitored and evaluated by the Traditional Mediation Board to ensure quality mediation services. The evaluation may include allowing parties to assess the mediator’s conduct and other factors, including the principles of mediation. Arrangements may be made for parties to give feedback at the end of proceedings. Fifth, the Malawian government should fund traditional mediation programmes. Funds are needed to support the training of chiefs, village heads and counsellors in customary law. Malawi also needs funds to establish mediation institutions, policies and public awareness campaigns. The government should include funds for these programmes in its yearly budgets.
Conclusion
Traditional mediation plays a crucial role in promoting access to justice in the rural areas of Malawi. The majority of Malawians rely on customary law, such as traditional mediation, to resolve disputes. Traditional mediation is the most accessible, cheapest, fastest and least complex means of dispute resolution in Malawi, unlike litigation or court-affixed mediation. Its communitarian nature makes it more accountable and transparent. However, the government of Malawi has neglected it and has left it to operate on its own, which threatens the provision of a quality service. While the Constitution provides for the use of customary law, there is no comprehensive and effective law in Malawi to promote traditional mediation. The Chief’s Act is a mere skeleton which fails to include many issues of mediation, including its principles, ethical codes and institutions. This undermines the use of traditional mediation and threatens the provision of quality services in customary law. International law is also inadequate because there is no comprehensive mediation convention covering all fields of law, including traditional mediation. Again, this hinders the growth of traditional mediation and the provision of quality services. For traditional mediation to provide the best services to Malawians, there is a need to address the challenges mentioned above, including having a comprehensive legal and institutional framework at international, regional and national levels.
Competing interests
None
Open access
