role of alternative dispute resolution in reducing case backlog chapter one
TRANSCRIPT
ROLE OF ALTERNATIVE DISPUTE RESOLUTION IN REDUCING CASE BACKLOG
CHAPTER ONE1.1IntroductionThis chapter traces the historical development of Alternative Dispute resolution in
Uganda generally and court based mediation specifically by paying attention to the
trends the concept has taken since pre-colonial period to present. It further
provides the problem statement influencing this study as well as the main
objectives that will guide the research. It further provides the research hypothesis,
research questions as well as the methodology to be applied in the study.
1.2 Background to the studyAlternative dispute resolution is a confidential and informal way of resolving a
dispute with the help of a neutral third person – the mediator. The mediator works
with both parties to help them reach a mutually agreeable solution to resolve their
differences.1 Moore (2003) defines Alternative dispute resolution as the
intervention in a conflict by an acceptable third party who has limited or no
authoritative decision-making power, and who assists the involved parties to
voluntarily reach a settlement.2 Alternative dispute resolution aims to lay forward
the statement of an individual who feels constrained or hindered because of one or
several reasons, which may be administrative, logistical, or commercial. Today,
Alternative dispute resolution is considered as a way to intervene in difficult
situations between parties (person or entity), particularly in conflict contexts.
According to Baruch Bush, Alternative dispute resolution has existed for a very
long time in the form of third-party interventions in a conflict.3 In fact, even the Bible
and the Quran make references to amicable settlement of disputes. The Bible
advises:
1 Ntuli, N.N. (2010) Alternative dispute resolution Training Manual Commercial Court of Uganda, Kampala, Commercial Court Division of the High Court of Uganda2 Moore, Christopher The Alternative dispute resolution Process, San Francisco,20033 Baruch, Bush R.A and Folger J.P (1994) The Promise of Alternative dispute resolution: Responding to Conflict Through Empowerment and Recognition: San Francisco Jossey Bass (1994)
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“If someone brings a lawful suit against you and takes you to court, do your best to settle
the dispute with him before you get to court. If you don’t, he will drag you before the Judge,
who will hand you over
to the Police and you will be put in jail. There you will stay, I tell you, until you pay the last
penny of your fine”.4
Similarly, the Quran shows that Islam is adequate in solving disputes, and it discourages parties from taking their disputes to court before attempting to resolve the same amicably. It advises, for example:
“If two parties among the Believers fall into a quarrel make ye peace
between them: but if one of them transgresses beyond bounds
against the other then fight ye (all) against the one that transgresses
until it complies with the command of Allah; but if it complies then
make peace between them with justice and be fair, for Allah loves
those who are fair (and just).”5
The Quran further advises that disputes such as family, marital and divorce should
be resolved out of court. The Prophet Muhammad personally helped parties solve
their problems.6
Although third-party interventions in contexts of disputes have existed for a very
long time, the concept of Alternative dispute resolution only arose at the end of the
twentieth century.7 Until then, the most common mode of dispute resolution was
the adversarial resolution of disputes. The adversarial system of justice was
characterized by frustration and dissatisfaction arising from several factors which
included delay, costs and expense of litigation. This led to a search for other
modes of resolving disputes, which were dubbed ‘alternative.’ Black’s Law
dictionary defines the adversarial system as the jurisprudential net work of laws,
rules and procedures characterized by opposing parties who contend against each
other for a result favorable to themselves.8 In such systems the Judge acts as an
4 Luke 12: 58-59 (Good News Bible).5 Surah al-Hujurat (49):9.6 Surah an-Nisa (4): 11-12.7 Justice James, Farley, The role of Commercial Courts: Efficient Court Administration: The Toronto Commercial Lists8 Black’s Law Dictionary 6th Edition at Page 49. The Oxford dictionary defines the word adversarial in more graphic terms, as “involving people who are in opposition and who make attacks on each other.” See,
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independent Magistrate rather than Prosecutor, as distinguished from the
inquisitorial system.
Over the past several years, the Commercial Division of the High Court of Uganda
has pursued reforms to streamline its own processes in an effort to reduce case
backlog and make the court more attractive. In so doing, the Court has tried to
emulate those commercial practices that have proven successful in other
jurisdictions. It was hoped that it would make itself a more desirable partner in
dispute resolution by operating as a court that recognizes the needs of a
commercial business and minimizing bureaucratic idiosyncrasies that are common
in ordinary courts.9
One such reform initiative has been the introduction of court based Alternative
dispute resolution – the expanded use of Alternative dispute resolution for the
prompt and informal resolution of disputes before the court. In 2003, the
commercial court launched a two-year pilot project in which compulsory court
based Alternative dispute resolution was introduced.10 The pilot project ran
successfully from 2003 to 2005 and in 2007, the Judicature (Commercial Court
Division) (Alternative dispute resolution) Rules were made and be CBMe
operational in 2008. These Rules have been revised under S.I No. 10 of 2013 as
The Judicature (Alternative dispute resolution) Rules, 2013 and these are not
limited to the commercial court but apply to all Courts.
Alternative dispute resolution was officially ushered into the legal system through
the introduction of the Arbitration and Conciliation Act11 which was signed into law
on 19th May 2000. It was based upon the recommendations of the Uganda Law
Reform Commission, and encourages courts to resolve disputes consensually,
authorizing them and litigants to use any alternative means of dispute resolution
for resolving claims and disputes. The use of such processes in lieu of court
litigation can provide considerable benefits in the form of both cost and time
Oxfords Dictionary 6th Edition, Page 17.9 The High Court Commercial Division, Annual Report For December (2011). 10 See, Commercial Court Division (Alternative dispute resolution Pilot Project) Rules, 2003 S.I No 71 of 2008.11 Arbitration and Conciliation Act Chapter 4, Laws of Uganda.
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savings. It also provides the court with greater latitude when attempting to solve
such disputes.
The Commercial Division of the High Court, now in existence for over ten years,
has embraced compulsory court based Alternative dispute resolution. Since the
pilot stage, many changes have taken place, the most significant one being the
creation of an Alternative dispute resolution Registry in 2010 headed by a Deputy
Registrar. Consequently, Alternative dispute resolution statistics have continued to
improve despite the challenges of uptake by some parties on the use of Alternative
dispute resolution; a significant increase in the disposal of cases has been
registered. In 2011, for example, Alternative dispute resolution accounted for a
settlement rate of 20% of cases filed in court, up from 18.4% in 2010.12 The
Alternative dispute resolution Registry was able to dispose of 381 Alternative
dispute resolutions for the period under review. However, due to high filings, 107
Alternative dispute resolutions remained pending to be carried forward to 2012.13
This led to sight overall increase in the case backlog at the Division from 206 in
2010 to 346 in 2011. Similarly, the overall number of pending judgments
increased from 67 in 2010 to 77 in 2011.14
1.3 Statement of the ProblemThe introduction of compulsory court based Alternative dispute resolution in the
Commercial Division of the High Court was intended to bring down case backlog to
a bare minimum. However, this has not been achieved. While there are clear
instruments establishing and governing the court based Alternative dispute
resolution initiative, as well as a well laid down implementation procedure, it is not
certain whether these have inherent shortcomings that may explain the failure of
the initiative to achieve its overall goal. Yet the Commercial Court cannot afford to
continue deploying resources to implement an initiative that is not achieving what it
was intended to achieve, which is the expeditious dispensation of justice through
case backlog reduction.
12 The High Court Commercial Division, Annual Report For December 2011 Page 2.13 Ibid, Page.14.14 Ibid, Page 2.
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1.4 Objectives of the Study
1.4.1 Main ObjectiveThe general objective of the study is to investigate the nexus between court based
Alternative dispute resolution and case backlog at the Commercial Division of the
High Court.
1.4.2 Specific objectives
1. To establish the factors leading to chronic case backlog at the Commercial
Court;
2. To assess the performance of the Commercial Court in implementing court
based Alternative dispute resolution since its introduction; and
3. To critically review the legal and regulatory framework governing court
based Alternative dispute resolution.
1.5 Research Questions1. What are the factors leading to chronic case backlog at the Commercial
Court?
2. How has the Commercial Court performed in implementing court based
Alternative dispute resolution since its introduction?
3. How effective is the legal and regulatory framework governing court based
Alternative dispute resolution?
1.6 Scope of the Study 1.6.1Geographical scopeThe study was conducted in Kampala, at the Commercial Court.
1.6.2 Time ScopeFor purposes of time scope, this research focused on the period 2010 to 2013.
1.6.3 Content scopeThe research will provide information and analysis on the performance and
achievements made by the Commercial Court since it started implementing court
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based Alternative dispute resolution. In attempting to uncover why the Court has
not been able to deal with the problem of case backlog as initially expected, the
study will explore the factors that have impeded the implementation process –
factors associated with chronic case backlog. The study will also critically analyse
the Act and the Rules governing court based Alternative dispute resolution for any
possible weaknesses that may explain its apparent failure.
1.7 Significance of the StudyThis study will help benefit several stakeholders; that is court users, judicial
officers, court administrators, legal practitioners, litigants among others in
appreciating the challenges and role of Alternative dispute resolution in reducing
case backlog in courts. The study will further help policy makers and legislators, to
prioritize Alternative dispute resolution in the administration of justice. Additionally
the study will provide recommendations to the challenges faced in the
implementation of compulsory court based Alternative dispute resolution.
1.8 Conceptual FrameworkThe first step in examining national and international Alternative dispute resolution
and Alternative Dispute Resolution trends is to examine the current thinking
around Alternative dispute resolution models. Briefly Boulle (1998) summarized
that the main objective of settlement Alternative dispute resolution is to encourage
incremental bargaining towards a central point between the two parties' positions.
He argued that the mediator who is a neutral third party works to bring the parties
off their positions to a compromise.15 He went on to distinguish between the four
models of Alternative dispute resolution namely; facilitative, settlement,
therapeutic, and evaluative. Mediators usually demonstrate the use of two or more
models in Alternative dispute resolution practice.
In the facilitative model mediators are encouraged to focus primarily on helping the
parties to identify and express their interests and needs, assuming that this will
bring to the surface common ground and highlight areas for trade-offs and
compromise. This can be viewed as a common style where parties are in dispute
15 Boulle, L. Jones and J Goldblatt, V. (1998) Alternative dispute resolution: Principles, Process, Practice (Zealand) Edition, Wellington, Butterworths
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over a single issue, which is money. This model of Alternative dispute resolution is
sometimes referred to as problem-solving Alternative dispute resolution and is
widely practiced amongst the Alternative dispute resolution community. Its primary
focus is on the problem itself and mediators encourage parties to explore data and
experiences related to the problem.16
In evaluative model, on the other hand, mediators try to provide disputants with a
realistic assessment of their negotiating positions according to legal rights and
entitlements and within the anticipated range of court outcomes. The therapeutic
model focuses on the underlying causes of the problem with a view to improving
future relationships between the parties.17
The facilitative approach is pragmatic, and is by far the most common model. It is
basically focused on the underlying interests and needs of the parties and this is
well expressed in the influential work by Moore.18 However, there have been
criticisms against this approach, that when mediators are addressing the
underlying issues to the conflict, they focus on information that relates to the
problem itself rather than exploring broader issues relating to the parties' identities
and relationships. Bush and Folger contrast their transformative perspective on the
practice of Alternative dispute resolution with the more traditional problem-solving
approach.19 According to them, the primary goal of problem-solving Alternative
dispute resolution is to generate a mutually acceptable settlement of the immediate
dispute.
Bush and Folger’s (2001) transformative approach to Alternative dispute resolution
does not seek resolution of the immediate problem, but rather, seeks the
empowerment and mutual recognition of the parties involved. These scholars
introduced a theory that challenged the assumptions that our interests are 16 Menkel-Meadow Carrie, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Cooptedor the Law of ADR , [Florida State University Law Review, Vol 19(6)] p. 72
17 Karl Mackie et al. The ADR Practice Guide – Commercial Dispute Resolution[2000 Butterworths] p 8
18Moore, C.W The Alternative dispute resolution Process: Practical Strategies for Resolving Conflict, 2nd
Edition, San Francisco, Jossey- Bass19Baruch, Bush R A and Folger J.P The Promise of Alternative dispute resolution: Responding to Conflict Through Empowerment and Recognition. San Francisco, Jossey-Bass 1994
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"natural." They also argue that what people want does not stem from internal
desires or interests. Instead people construct conflict from narrative descriptions of
events and the stories we tell about these events condition our interests, both
socially and culturally.20
Danesh and Danesh use the consultative intervention model to offer a critique of
institutionalized Alternative dispute resolution.21 The three defining features of this
model are that it is pro-active, unity-centered and educative; features which they
argue are missing from the predominant Alternative dispute resolution models.
However, the judges and mediators now have acquainted themselves with such
skills and qualities having been trained.
A pro-active effect offers three possibilities, firstly a disputant could leave a conflict
resolution process with a better understanding of how to deal with the
psychological and physical toll that conflict can have on individuals and their
relationships. Secondly, disputants can learn how to better manage future conflicts
without resorting to external intervention. This is an achievement of the mediator’s
effort to sensitize the parties involved about advantages of ADR processes in our
jurisdiction.22
Thirdly, disputants may learn how to approach future conflict in a way that lessens
the appearance of conflict in the first place. Tied into this is the premise that our
approach to conflict, the intensity of it and the way we pursue conflict resolution, is
tied into our worldview. Proactive conflict resolution requires making participants
aware of the connection between their worldview, the conflict they are in and their
approach to the resolution of that conflict.
According to Danesh and Danesh (2000) conventional Alternative dispute
resolution is not designed to engage at the level of worldview. Engagement in a
consultative intervention model gives parties the opportunity to learn about
themselves and others. The process looks at how conflicts emerge. It also views
20 Bush and Folger., Court-Annexed Mediation: Critical Perspectives on Selected Stateand Federal Programs [1998 Pike & Fischer Inc.], p. iv et seq.
21 Danesh, H.B and R, 2002, Consultative Conflict- Resolution Model: Beyond Alternative Dispute- Resolution: International Journal of Peace Studies, Autumn/Winter Vol. 7 No.222 Ibid
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education as a "challenge and transparency" meaning that the process itself
educates conflicting parties by challenging them to evaluate themselves, and their
alternatives. 23
1.9 Research MethodologyThis section proposes the methodology to be adopted by the study. It presents the
research design, the population and sample issues, data collection methods and
instruments, data quality control, processing and analysis.
1.9.1 Research DesignThe study followed a qualitative, case study design. A case study design is an
empirical inquiry that investigates a contemporary phenomenon within its real-life
context, especially when the boundaries between phenomenon and context are
not clearly evident.24 This being exactly the case with the current problem of the
link between court based Alternative dispute resolution case backlog reduction at
the Commercial Court, there is ample justification for such a design. Case study
research was thus conducted at the Commercial Court, because it is the first court
in Uganda to launch a two year pilot project in which compulsory court based
Alternative dispute resolution was introduced. The pilot project led to the
introduction of The Commercial Court Division (Alternative dispute resolution Pilot
Project) Rules, 2003 S.I No. 71 of 2003.25
1.9.2 Population and Sampling
The target population was the litigants, the mediators, judicial officers of the
commercial court and advocates. These categories participated as key informants
and were purposively selected. The study involved than 10 litigants, 10 advocates,
10 judicial officers, and 10 mediators.
1.9.3 Data collection
23Danesh, H.B and Danesh R Consultative Conflict-Resolution Model: Beyond Alternative Dispute Resolution. International Journal of Peace Studies, Autumn/Winter Vol. 7 No.2
24 Katebire, D.A. (2007), Social Research Methodology: An Introduction25 Kehinda Aina ADR in Africa: The prospect of the Multi-Door Courthouse Concept[paper delivered at a KCL seminar in London 5th June 2003]
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Both primary and secondary data was collected for this study. Primary data was
collected through in-depth interviews and Focus Group Discussions (FGDs). In line
with these two methods, two instruments were used: an interview guide, which
listed the subtopics and issues to be investigated; and a focus group discussion
schedule, which also listed the subtopics and issues to be discussed. Secondary
data was collected through the review of available literature from both the physical
and electronic libraries.
1.9.4 Data analysis
Primary data was sorted and edited as the first step of data processing. Because
the numbers of respondents involved in this qualitative study are manageable,
data was processed manually using the matrix method. The results will be marged
with those from FGDs and the reporting integrated with secondary data at the time
of interpretation. Reporting was done with the use of verbatim quotations for
purposes of emphasis and corroboration.
1.9.5 Limitations
The researcher encountered a number of constraints which include limited funding,
limited time frame and non-response on the part of some targeted potential
respondents. As a result, the researcher limited the study to a small geographical
area and to a small number of respondents so as to overcome the problem of
inadequate funding and also to make the study fit within the available time frame.
1.10 Ethical considerations
As the researcher may be aware of the implications and challenges of field work,
the researcher obtained an introductory letter from the Islamic University in
Uganda to the study area authorities. With this letter, the researcher will introduce
himself and sought consent from the relevant authorities in the community and the
judiciary. Further as a matter of practice, the researcher did not mention names of
the respondents to ensure confidentiality.
CHAPTER TWO
LITERATURE REVIEW
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2.1 IntroductionThe growth of Alternative dispute resolution over the last 20 years has generated
quantities of literature on the subject, locally and internationally. However, a
literature survey leading to this review suggests that most of the literature on
Alternative dispute resolution generally, and Court Based Mediation (CBM) in
particular, is limited to the scope of the subject in relation to other forms of ADR,
and to its distinction from adjudication. The literature is thus deeply focused on
definitional issues, and on the sociological rather than the legal character of
Alternative dispute resolution. Moreover, the literature does not clearly show the
connection between Court Based Mediation and case backlogs, yet Court Based
Mediation supporters claim a positive correlation between the two. There is thus a
dearth of literature on issues on the nexus between CBM and case backlog
reduction, the implementation of CBM, and on the role of regulation of CBM as the
following subsections illustrate.
2.2 Causes of case backlogResearch indicates that the phenomenon of case backlog is an intricate one
whose causes are sometimes also its effects. As some studies suggest, case
backlog has a domino effect: to fight it requires considerable resources, which may
call for reallocation from other divisions of courts, which leads to depletion of
resources in those divisions and accumulation of cases.26 Case backlog also
subsists in a vicious circle: judicial officers concentrate on the cases they inherit
and end up with an accumulation of a backlog of their own. Former Supreme
Court Judge of India, Justice Sinha observed:
“Judicial officers of today have to realize that they are inheriting a
legacy of huge arrears. The pendency of cases is huge because
earlier methods of disposal were not very effective. The judicial
officers of today have to look at the problem of case disposal
differently and to adopt different alternative methods of dispute
resolution.”27
26 E.g., American University (1977), Background paper on issues and sources relating to case backlog and delay in the state courts. Washington D.C.: Courts Working Group.27 Sinha, S.B. (), ADR: Mechanism and effective implementation, p.2.
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This observation indeed makes a case for ADR, particularly of court-based
Alternative dispute resolution (CBM). But such alternative interventions may not
be any more successful unless the factors that lead to accumulation of backlog are
thoroughly understood.
The causes of backlog have extensively been studied in a variety of courts and
court jurisdictions. Some causes are management related, and include such
factors as shortage of manpower and other resources, internal court administrative
problems, personnel imbalances, excessive continuance policies, and – quite
interestingly – officers of the court not considering delay a serious problem.28
Other studies suggest that some court policies and procedures themselves do
often create situations that accelerate rather than curtail delay. For instance, some
prosecutorial and defense practices have a delay effect that creates backlog. In a
US study, in a superior court of the District of Columbia, the Attorney handed down
a large number of grand jury indictments in an attempt “to make his operations
current.”29 However, this had an unanticipated backlog: it depleted the resources
so that other resources had to be diverted from other departments, which led into
backlog in those divisions themselves.
Other causes have been found to be associated with deliberate delays by defense
lawyers. It has been observed that cases that take too long in the court result in
the witnesses dying, losing interest, or forgetting the relevant events.30 Similarly,
delays are sometimes caused by the effect of appellate courts actions, e.g., some
appeals leading to re-trial of cases.31 While all these factors seem obvious, what is
worth noting is that none of these studies is Uganda-specific, and it would not be
prudent to act on an assumption that what goes in those different economies and
judicial systems also goes in Uganda. Hence, the need to study these causal
factors in Uganda.
28 S.B. Sinha, Judicial Reform in Justice Delivery System, (2004) 4 SCC (Jour) 35. 29 American University (1977), Background paper on issues and sources relating to case backlog and delay in the state courts. Washington D.C: Courts Working Group, p.1.30 Lea Anzagra et al (2013), “Average Time to Justice Delivery; A Case Study in the Upper West and East Regional District and Circuit Courts in Ghana.” Developing Country Studies, Vol.3, No.5.31 Ibid.
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2.3 Overview of Uganda’s legal regime and its relationship with court based mediationThe common law legal system is an alien introduction into Uganda; alien in both
substance and procedure. It was superimposed on the various legal, semi-legal
and non-legal systems that ordered the various societies and resolved issues
before colonization. From the very start it was attempted to run a dual system of
native courts and regular courts; and administer a sanitized colonially customized
customary law and English law. This in effect resulted in administering law that
was alien to the people. There are certain features of the common law legal
system that are pertinent to the question of access to justice.
The legal principles are not only of an alien source; they are rendered in non-
popular technical language, even for those acquainted with the English language.
On top of this English itself is a foreign language in which the majority of Ugandans
have no proficiency. But it is both the language in which legislation is written and
which is also the language of the court.
Russel expressed this fundamental problem as merely one of translation:
"And there is the question of language, which in a country with no working
national language, is bound to impose a great translation burden on courts.
But this burden is made unnecessarily large by the insistence of some
magistrates to have all of the evidence which is given in the vernacular orally
translated into English before they write it down, even when they know the
vernacular as well as if not better than the translator."32
The judicial process itself poses another hurdle to access to justice. In the first
place the process is of an adversarial nature in which the parties strive to establish
their cases in hostile fashion while the court plays a non-interventionist role of an
umpire. This in many cases does not conduce to establishing the true facts of a
case.
Jotham Tumwesigye, the Inspector General of Government made a thoroughgoing
critique of this system:
32 Russel Mediation/Alternative Dispute Resolution in Oil, Gas and Energy Transactions:Commercially Superior to Formal Litigation and Arbitration?
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"...the basic problem that we have not quite tackled in the country is designing an
effective system of justice that meets the needs of our people..... In the adversarial
system which the British operate and which we inherited.... a judge merely acts as an
umpire while the prosecutor and the defence battle it out..... If the judge tries to ask
penetrating questions he will be accused of descending into the arena and he will be
asked to stop it. The job of the judge in this system is to make sure that the two sides
stick to the rules. If one side plays its part badly...... that is not the business of the
judge.... In the inquisitional system... the judge sets out to get the truth through his
investigative machinery. He cannot be accused of descending into the arena because the
whole arena belongs to him. Lawyers are not allowed to cross-examine witnesses. It is
the judge who does.
Lawyers are limited only to making submissions at the end..... This system is more intelligible
and would promote the interests of criminal justice in this country..... Traditionally our system
was inquisitional and not adversarial."33
Although the Inspector General of Government was preoccupied with criminal
justice administration his remarks are pertinent to the whole judicial process.
This leads to another aspect of the legal system. Namely that the administration of
such a system, given the technical nature of the law and its procedures requires
professional services. Legal services are notoriously and universally expensive.
Indeed in Uganda compared to other services such as medical and other technical
services, legal services are far more expensive and beyond the reach of the
majority of the population.
This problem was noted by Russel (op.cit) much earlier when he described the
judicial style as being blighted by "formalism" which is):
"the most distinct characteristic of the style of judging practiced in Uganda’s courts - both
its lower courts and superior courts. That is what I might call the formalism - yet the
excessive formalism – which I witnessed in so many courts and in so many contexts. By
formalism I mean a total concentration on applying rules to the letter, of following form, of
being guided by legal technicalities, rather than being concerned with the justice of the
case.
There are so many examples of this phenomenon, but perhaps the most striking is the
tendency to decide cases on the basis of small contradictions in the testimony of
33 Ibid.
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witnesses or gaps in the evidence. Very little consideration seems to be given to the
African cultivator’s imprecision about time and dates, nor the difficulties of police
investigation and reporting in a culture which is still more oral than literate. There is
further the tendency to overturn convictions on appeal or revision for what seem to be
small technical reasons often having to do with slight irregularities in the phrasing of the
charge. So many magistrates stick rather vigorously to the role of the passive judge in
adversary proceedings which lack professional adversaries and resist the most
compelling opportunities to help the parties bring out important facts. They also often
seem too aloof to attempt even the slightest probe into the social and economic
circumstances of defendants."34
It is not therefore surprising that in spite of Articles 126 of the Constitution such
cases as Uganda Journalist Safety Committee & Haruna Kanabi v Attorney General35 and Uganda Journalist Safety Committee & 2 Others v Attorney General36 were dismissed on technicalities instead of considering the merits of the
important constitutional issues that had been raised. It also still remains to be
determined to what extent the relatively new Family and Children courts are
implementing the statutory requirement that proceedings be as informal as
possible and by inquiry rather than by exposing the child to adversarial
procedures.
The huddles mentioned above, it becomes clear, are systemic. This means that
internal judicial mechanisms such as the system of appeals, especially given the
limitations with regard to the rigid rules on admission of fresh evidence; the power
of Revision by the High Court and the administrative measures of supervision and
discipline by the Judicial Service Commission, cannot adequately address the
fundamental flaws, nor the distortions of the system brought about by corruption.
Nevertheless there have been significant efforts at reform both of procedural and
administrative aspects of the judicial process.
One aspect of this is the Civil Procedure (Amendment) Rules, 1998. Through
these rules it is sought to simplify and expedite civil proceedings, and to encourage
reconciliation and make the proceedings less adversarial. Thus the stage of filing a
34 Simon Roberts, Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship [2003]M.L.R. Vol. 56 No. 3 p. 452 et seq35 CP/11/200936 Cp/8/2008
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notice of appearance has been removed; a defendant simply files a written
statement of defence; a plaint can easily be amended without leave of court. The
rules also require a summary of evidence and a list of authorities. This greatly
assists both the court and the other party and removes the element of surprise.
The rules also provide for a conference prior to the main hearing. Here the parties
go through the papers, sort out issues, some of which may be resolved there and
then and could indeed lead to alternative dispute resolution methods. The parties
may also look at the list of evidence and could admit to some of the allegations. In
the end it may even not be necessary to proceed with the main suit.37
The other aspect of reform has been administrative and infrastructural. This is the
National Programme for Judicial Reform under the auspices of DANIDA. The
programme followed in the steps of the Platt Commission. It comprises 3 main
components for funding support for the rehabilitation of buildings, legal reform and
training.
In Masaka Magisterial Area a pilot model called "The Chain Linked" involves the
cooperation between the key criminal justice agencies: the police judiciary and
Department of Public Prosecutions, Prisons and Probation Services. The aim is to
speed up and improve the efficiency of the criminal justice process. It is aimed at
the obstacles that The Chain Linked has identified:
"Insufficient compliance with constitutional standards for time limits for holding accused persons
and for treatment of offenders, slow reporting of criminal cases by the public to the police; non-
adherence to established investigation procedures; a high frequency of case adjournments, a
shortage of all categories of personnel, lack of representation of accused persons; a very high
incidence of remands, overcrowding of prisons, due amongst others, to insufficient use of
bail."20
The programme aims to achieve co-operation and coordination amongst the
various agencies, the rehabilitation of buildings, legal reform such as the
Community Service Act now under pilot implementation in magisterial areas such
as Masaka and Mukono in order to relieve prison congestion, rationalization
process in the judiciary through tackling operational inadequacies: hence adoption
37 Order XXII of the CPR
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of information and communication technology, and improvement of registry data
systems. The other component, training, has been carried out by the Judicial
Training Committee and was extended to include support staff in order to
strengthen case management.
Conklin38 found out that the reaction of people to crime can reinforce and
exacerbate the crime problem. He contends that the public's perceptions of crime
and criminals and the consequent labeling process adversely affect both the
criminal and community. He further argues that crime brings people together, and
influences community response to the crime problem. He also contends that as
defensive responses to perceived crime threats, people will try almost anything to
defend themselves from victimization.
Rommulo (1982) studied the effects of conflicting rights in Canada. He conducted
a survey to find out why the police clashed with public when the police was
quelling a riotous mob that wanted to disrupt a political rally in their town. His study
revealed that the public clashed with police as a result of the conflict of rights
resulting into a number of injuries on both side. The public had a right to
demonstrate against a rally which was making noise in their area yet the politicians
also had a right to have a gathering. The police had the obligation to protect both
groups but in the due course clashed with the public. Although Rommulo’s findings
are relevant to this study it did not consider the right to liberty of suspects.
Similarly, Hannum39, studied ways of accommodating conflicting rights in United
States of America and revealed that situations where rights have conflicted have
always resulted in violence or near violence. He argues that unconscious handling
of conflicting rights is to blame for the bad outcomes. Although this study made this
38 Conklin J E. (1975). Impact of crime: A discussion of the types of social conditions and public attitudes that can have deleterious or salubrious effects on the commission of crime. Studies/research reports. Macmillan, New York.
39 Hannum, H. (1996). Autonomy and self determination: the ccommodation of Conflicting Rights. http://www.books.google.com/books?hl=en&lr=gOq
17
touching finding, it was based on secondary information and not on primary
information which is more dependable.
2.4 Implementation of court based Alternative dispute resolutionNot a single study has been found on the implementation of CBM. However, the
literature search revealed that some countries such as the US have judicial performance evaluation (JPE) programs, whose main thrust it is to appraise the implementation and performance of programs and projects intended to enhance justice delivery. In 2008, Kourlis and Singer addressed salient issues in
the implementation of JPE programs in 19 states in the US.40 The study reviews
several researches that test different methods of implementing JPE programs. However, the major limitation of the study is its restriction to examining the
performance of the judge and education of the citizen about the role of the judge,
and nothing at all on the implementation of justice delivery programs such as CBM.
Courts in different jurisdictions have implemented different programs/projects
aimed at enhancing their performance in the dispensation of justice. In Uganda,
CBM is one such project/program. Elsewhere, one project to be implemented in
same manner as CBM has been the Family Relationship Centre’s (FRCs) in
Australia.41 Pidgeon has studied the process undertaken by the Australian
Government to develop and implement FRCs as part of a major package of
reforms to the Australian family law system. The study details the practical steps
taken to roll-out the project, subject to a number of issues for the Government to
address, including: how the project should operate; the location; how to allocate
the funding; and how to manage the roll-out of so many services. The article also
discusses the steps taken to support the introduction of compulsory dispute
resolution; and research and evaluation undertaken to measure the impact of the
reforms.
In a similar study, Shudaimah and Summers investigated, inter alia, stakeholder
concerns on the implementation, scheduling, and familiarity among parties in One
40 See, Kourlis, R.L. & Singer, J.M. (2008), A Performance Evaluation Program For The Federal Judiciary. Denver University Law Review. Vol. 86 Issue 1, p7-51.41 See, Pidgeon, S. (2013), “From Policy to Implementation-How Family Relationship Centre’s BeCBMe a Reality.” Family Court Review. Vol. 51 Issue 2, p224-233.
18
Family One Judge Docketing – a judicial program similar in many respects to
CBM.42 The study illustrates that in planning and implementing such judicial
projects/programs, courts must take into account logistical considerations that can
impact the program feasibility, acceptance, and success. These include fiscal
resources, local regulations, staffing, and workplace structures. The authors
stress that communication and good relationships among stakeholders and
agencies can help facilitate the implementation of model court practices such as
one family one judge docketing.
Although the focus of the foregoing studies is on different programs, there is
striking relevance of these studies if viewed within the context of CBM as a judicial
program. Of course, this relevance does not take away the need for research on
the implementation of CBM in a Uganda-specific context.
2.5 Regulation of court-based MediationCurie Menkel-Meadow has argued that ADR was developed, at least in part, to
move away from the rigidities of law and formal institutions, but that it has now
become formalized and rigid itself.43 Noting that courts now use ADR to increase
efficiency and reduce caseloads rather than to achieve ‘better’ justice, the study
questions whether adapting ADR to legal culture is counterproductive to the
transformative goals of ADR. The study concludes that while court-mandated ADR
continues to have advantages over adjudication in some cases, ADR is having to
conform to legal values and structures and is losing much of its reformative power.
The study also calls for increased evaluation of and increased innovation in the
regulation and use of ADR in courts.
Other studies have been concerned with the framework for implementation of
court-mandated ADR. James Alfini, for example, reflected on who should mediate
considering especially that “the role of judges has undergone significant changes
42 See, Shudaimah, C. & Summers, A. (2013). “Baltimore City's Model Court: Professional Stakeholders' Experience with Baltimore City's One Family, One Judge Docketing,” Family Court Review, Vol. 51 Issue 2, p286-297.
43 Menkel-Meadow, C. (1991), Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ‘The Law of ADR, (1991) 19 Fla. St. U. L. Rev. 1.
19
over the last few decades.”44 Yet, in spite of such changes, the legal and ethical
structures necessary to support judicial involvement in ADR have not been
adequately explored. The study suggests, for instance, that judges should adopt a
mediator or case evaluator's role in attempting to reach a settlement; but that they
should not mediate cases that have been assigned to them for trial because of the
conflicting roles of adjudicator and settlement agent, and the risk of coercion. Alfini
also questions whether judges have the competence to mediate and suggests that
they should certainly have Alternative dispute resolution training.
No reviews of legislations and regulations on court-based Alternative dispute
resolution have been found. Instead, some studies have focused on some legal
implications of implementing a judicial initiative that is sociological rather than legal
in nature without a firm legal and ethical framework. Frank Sander, for example,
points out four concerns with judges doing Alternative dispute resolution, namely;
undue coercion, role confusion, appearance of impropriety and
competence/training.45 Like Alfini, Sander argues that judges should not mediate
the cases they will later try. He also maintains that Alternative dispute resolution
and adjudication should possibly be kept two distinct tracks with judicial settlement
efforts limited to procedural efforts to get parties and their lawyers to explore ADR
options.
2.5.1 Theories and concepts of justice Whilst the expansion of mediation into the mainstream of dispute resolution may
help parties to resolve their disputes in an inexpensive and speedy way, it raises a
question whether it can provide processes and outcomes that could be said to be
just. It is important that mediation is procedurally just but this must be balanced
with speed, cost effectiveness, informality and flexibility, the assumptions and
values that underpin it. Galanter (1984) expressed a mixed view about justice in
dispute resolution by saying that ‘justice does not reside entirely in the realm of
formal legal processes nor is it entirely absent from the world of bargaining’
(Galanter 1984, p. 275). This section commences with a discussion of general
concepts of justice. It is important to understand the ideas and meanings of justice 44 Jane, Alfini "Risk of Coercion Too great: Judges should not mediate cases assigned to them for trial" , Page 11.45 Frank, EA Sander, A Friendly Amendment Page. 11
20
in the formal court system and how they are imported into, and embedded in,
mediation practice. The presence, or absence, of justice in mediation is by
reviewing relevant literature.
2.5.2 The meaning of justice Justice is a concept with strong emotional appeal but with no precise meaning
(Fox 2000). It is constructed and perceived in many different ways making it
difficult to give it a definite or exact definition (Sourdin 2008; Sternlight 2008). For
example, some link justice to retribution and restoration (Barsky 2007; Ife 2001)
while others link it to fairness (Folberg & Taylor 1984; Gunning 2004). Boulle
(1996) suggests that justice is measured in the speed of the dispute resolution
process, the informality of settings, the level of responsiveness of the process to
the parties’ needs, and the degree of accessibility afforded to them. In the formal
court system the concept of justice appears in two phrases which describe two key
aspects of the trial process; the first is natural justice which relates to the
procedures and the second is substantive justice or the outcome of the
adjudicative processes (Twyford, 2005).
Justice in the formal court system generally provides a standard for the rights and
duties of the disputants based on the rule of law. These ideas of justice may not fit
with mediation as parties may agree on settlements according to their own needs,
values and wishes ((NADRAC 1997; Sternlight 2008). In mediation the disputants
rely on their own ideas of justice to seek emotionally and practically fair outcomes.
This is what is termed by Nolan-Haley (1996) as ‘individualised justice’. So, when
justice is based on the parties’ consensual agreement, its meaning is even more
elusive. This is because the notions of justice vary between individuals and are
shaped by many factors, including both their shared and individual values and
beliefs. De Jersey (1991) argued that it would be difficult to argue that those
consensual agreements reached by mediation could not be perceived as just.
Such an argument, according to Van Gramberg (2006), confuses the success of
mediation settlements with the disputants’ perception of justice.
Justice can be considered from two different perspectives as indicated above in
respect of procedural and substantive justice. A study by Thibaut and Walker
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(1975), describes process control as the amount of control that disputants have
over the procedure (relating to procedural justice) and decision control refers to
their influence over the final outcome (relating to substantive justice). Later, Tyler
(1988) argued that there are four key issues which dominate the disputants’
assessments of whether the process was fair: firstly, the ability to participate in the
process; secondly, the neutrality of the third party; thirdly, the level of interpersonal
respect afforded to the disputants by the third party; and finally, the quality of the
outcome of the dispute, which must be fair. In Tyler’s assessment of fair process
above, the aspect of interactional justice is included. It concerns the level of
respect and dignity afforded to the disputants (Bies & Moag, 1986). The
relationship of procedural and interactional justice in creating the perception of
justice is so close that they can function as substitute for each other (Skarlicki &
Folger, 1997).
What constitutes a just decision results from the interaction between elements of
procedural, distributive and interactional justice (Deutsch, 1985). These aspects of
justice are basic human interests and a means to measure fairness and the
disputants’ sense of satisfaction with the outcome of dispute (Van Gramberg,
2006). These elements of justice will now be discussed.
2.5.3 Procedural Justice Procedural justice is the use of a fair procedure to enhance the fairness in dispute
management processes and satisfaction with outcomes (Howieson, 2002). It refers
to the perception that the procedures through which appropriate rules are applied
are fair (Tyler & Lind, 2000). It has been described as having subjective and
objective measures (Thibaut & Walker, 1975). Subjective procedural justice refers
to the disputants’ personal evaluations and perceptions (Lind et al. 1990; Thibaut &
Walker, 1975; Tyler, 1994). In contrast, objective procedural justice is based on the
application of safeguards which conform to some normative standards of justice
(Lind & Tyler, 1988). These include, firstly, the right to be informed in sufficient
details of the nature of the claim (McDermott & Berkeley, 1996). The second is the
right to present a defence. This may be in writing or in person (Barrett, 1999).
Third, due process requires that the hearing be conducted before an impartial
person or panel (Posthuma, 2003). Fourth, is the right to be provided with reasons
22
for the decision (Bayles, 1990; Jameson, 1999). Fifth, is the right to appeal against
the decision made (Posthuma 2003). The final requirement is that the dispute
resolution process should be conducted in a timely manner (Jameson, 1999).
The disputants’ perceptions of procedural justice also impact on their willingness to
accept the outcome of the dispute (Thibaut & Walker, 1975). In formal trials,
Thibaut and Walker, (1975) found that, disputants are more willing to accept the
decisions, irrespective of whether they lose or win, if they perceived that the trial
procedure was fair. Lind & Tyler, (1988) reported that disputants are more
concerned with the process on how the decisions are made and the nuances of
their treatment by the third party. This leads to greater compliance with the
outcome (Welsh, 2001).
Research into procedural justice also emphasises the opportunity for the
disputants’ voice (Thibaut & Walker, 1975); the opportunity for disputants’
participation and self-determination (Folberg & Taylor, 1984; Thibaut & Walker,
1978);a respectful and dignified approach to, and management of, the disputants’
issues (Smith et al. 2006; Welsh, 2007);and, transparency (Maiese, 2004).
The opportunity for voice is related to the disputants’ feeling that they have had a
fair chance to present their case and that their views have been heard and
considered (Campbell & Chong, 2008). Welsh, (2007) claimed that disputants
valued the opportunity for voice as it could increase their level of self-identity and
self-respect (Brazil, 2002). When mediators fail to ensure voice, disputants can
feel unsure whether they have received justice and doubt the legitimacy of the
process (Welsh, 2001). The opportunity for voice can therefore be said to be a
predictor of disputants’ satisfaction with the process (Gunning, 2004).
Whilst issues of procedural justice matter in litigation, some argue that they are not
so significant in mediation as the disputants maintain control over the terms of
settlement which they may reject it if they feel that they are unfair (Welsh, 2002).
On the other hand, earlier research by Lind et al. (1978) found that procedural
justice issues apply as much to mediation as to litigation. The authors explained
the relevance of procedural justice to mediation on the basis of two theories: social
23
exchange theory and group value theory. Whilst the social exchange theory
emphasised the opportunity for voice discussed above, the group value theory
considers voice as something more than a means to achieve outcomes and
includes the feeling of inclusion as well as treatment with dignity and respect.
Research by Welsh, (2001) evaluating mediators’ behaviour has supported social
exchange theory and its requirements that the disputants hear and understand
each other’s voice to reach a mutually acceptable outcome. The mediator too is
required to hear and understand their voices, so that the information can be used
to encourage them to engage in responsive and creative bargaining (Welsh, 2001).
Welsh, (2001) related the group value theory with the disputants feeling of
inclusion particularly when judge acts as mediator because they value their
interaction and the judge’s behaviour in the process symbolises the courts’
attitudes towards them and their disputes (Welsh, 2001).
Some practices in mediation, particularly caucus mediation, may be inconsistent
with the disputants’ perception of procedural justice. The exclusion of one of the
disputants may raise suspicions. It is in contradiction with the disputants’ desire for
procedures in which they are given the opportunity to hear and consider each
other’s voice and be treated as equally valued members of society. Exclusion does
not indicate social inclusion. The rules of procedural justice also require that
communications between the mediator and the disputants take place in the
presence of, or be disclosed to, each other (Twyford, 2005).
2.5.4 Distributive Justice Distributive justice focuses on perceptions of, and criteria to determine, the
substantive fairness of the outcomes (Deutch, 2000; Rawls, 1971). It suggests that
disputants’ satisfaction is increased when they believe that the outcome is fair
(Nabatchi et al. 2007). The three key principles in distributive fairness are: equity,
equality and need (Deutch et al. 2006). The equity principle posits the idea that
everyone should receive benefits proportional to their contribution.
Adams (1965) and later, Walster, Walster & Berscheid (1978) state that people
judge an outcome as fair when the ratio between their own inputs and outputs
compares well with the ratio of inputs and outputs of the others. Whilst the equality
24
principle means that everyone gets the benefits of the outcome, the needs
principle recognizes the fact that individuals vary in their ability to attain the basic
resources necessary for their well-being (Lewin-Epstein et al. 2003). The needs
principle denotes that a just outcome requires a distribution to those in greatest
need.
These three principles may appear to be in conflict in any particular allocation. In a
scenario where the benefits were distributed to all equally, irrespective of their
contributions and needs, the equity principle would be breached (Deutch et al.
2006; Van Gramberg, 2006). Nevertheless, a decision to reward one based on
equality and need principles may be considered as fair based on justice motivation
theory (Lerner 1977). It depends on the objectives of the allocator and the factors
that the allocator took into consideration in coming to the decision (Deutch, 1985).
Another important conception of distributive justice is formulated in relative
deprivation theory which focuses on the recipients’ perceived fairness of outcome
(Deutch et al. 2006). The sense of deprivation or injustice occurs when people
perceived that there is a short fall between what they actually received and what
they expected to receive.
2.5.5 Interactional Justice Closely related to procedural justice is interactional justice (Bies & Moag 1986)
which is defined as the interpersonal treatment afforded by the mediator (Tyler
1991).There are two sub-categories of interactional justice: informational justice
(explanation about the decision making procedures) and interpersonal justice (the
degree to which disputants are treated with politeness, dignity, and respect) (Tyler
& Bies 1990). These two subcategories may in turn overlap with each other but it is
interpersonal justice that is more relevant to mediation. The interpersonal
treatment afforded by the mediator, could make disputants feel satisfied with the
process regardless of the outcome (Greenberg, 1993).
Tyler, (1991) argued that disputants place great importance on being treated with
respect and dignity. He argued that how disputants felt about the way they were
treated had an impact on their perceptions of fairness in the process.
2.5.6 Justice and mediation
25
Two significant theories of mediation are based on conflicting views of justice. The
first is self-determination theory which proposes that justice derives primarily from
the parties’ right to self-determination (Waldman, 2005). This right allows parties to
participate in decision-making and determine the outcome. It is rooted in personal
autonomy and self-governance. In other words, the parties’ self-determination
gives ownership of the conflict to them (Nolan-Haley, 2007). It offers procedural
justice protections, providing parties with fairness and dignity. The second is social
norm theory. Social norm theorists believe that the inclusion of justice norms from
the formal court system will bring justice into the process. These serve to prevent
exploitation and provide a level playing field. In other words, applying legal norms
in mediation is likely to result in a fair outcome.
Research into the relationship between mediation and justice has focussed on two
concept of justice, namely procedural (whether the process is fair) and distributive
(whether the resulting outcome is fair). These have been used frequently by
researchers to gauge and explain the disputants’ perception of fairness and
satisfaction in court-based mediation (Kressel & Pruitt, 1989). A number of authors
believe that these two concepts are co-existent and intertwined. For example,
Menkel-Meadow, (2004) argued that both are necessary in mediation. Maiese,
(2004) argued that procedural justice results in greater compliance with the
outcome and a fairer distribution of goods and resources between the disputants.
Gunning (2004) argued that both are so closely aligned that mediators should
emphasise both in their mediations. Fisher and Brandon (2002) claimed that
mediators can deliver a fair process and a just resolution.
There is also a debate whether justice exists in what mediators do and how
disputants perceive these different approaches (Sourdin, 2008). For instance, the
mediator’s level of intervention and control may be higher in a complex dispute
resulting in less participation and control by disputants over content and process
(Thibaut & Walker, 1978). In their field study on procedural justice, Shapiro and
Brett (1993) found that the disputants’ perceptions of procedural justice is
influenced by the interpersonal context through the mediator’s behaviour which
strongly indicates that mediators can enhance perceptions of procedural justice in
what they do.
26
On the other hand, Howieson (2002) claimed that procedures are independent of
outcomes. In other words, procedural justice issues are relatively unaffected by
issues of distributive justice. She reported that disputants’ satisfaction is related to
perceptions of the fairness of the procedure regardless of the outcome. Some
researchers suggest that outcomes are more important with disputants than
procedures (Van Den Bos et al. 1997). Lind’s (1992) fairness heuristic theory
proposed that disputants form their fairness judgments on the basis of the
procedure and later incorporate outcome information into their fairness judgment.
The reasoning underlying this is that the information about the process is available
before the outcomes become apparent.
From the above discussion of the theories of justice (Section 3.7), it is
demonstrated that mediation may afford procedural justice, distributive and
interactional justice to the disputants. The former Chief Justice of Victoria, John
Phillips noted that justice offered by mediation is not an inferior type of justice
(Alexander, 2006). It satisfies the requirement of procedural justice as disputants
are given the opportunity to present their case and determine their own outcome in
the presence of third party neutral mediators. As highlighted by the justice theories
above that the more the disputants’ perceived that they have received procedural
justice, the greater their perception of distributive justice. The trust and the
interpersonal treatment afforded by the impartial mediator symbolises interactional
justice.
27
CHAPTER THREE
CRITICAL EXAMINATION OF THE LEGAL AND REGULATORY FRAMEWORK GOVERNING COURT BASED MEDIATION
3.1 Introduction
This chapter provides a legislative framework of court based Alternative dispute
resolution in Uganda. It critiques both the domestic and international legislation on
the subject. First, the chapter sets out the fundamental legal provisions that
constitute the basis of court-based Alternative dispute resolution. The chapter is
sub divided into two, with the first part focusing on municipal legislation and the
second on the international legal regime.
Alternative dispute resolution has recently taken centre stage as the preferred
mode of resolving disputes, especially those of a commercial nature. This is
regardless of the fact that law schools in Uganda still give a major part of the
training of the law to adversarial methods that centre on Litigation.
Court based mediation was introduced in Uganda under Commercial Court
mediation Pilot Project. The rules and procedures for this project were
promulgated in September 2003. The framework involves the transfer of
appropriate cases to mandatory mediation in order to facilitate an early settlement
of disputes.
Under the project, the parties are enjoined to refer their disputes to mediation for
resolution at no extra cost to the parties. All the cases filed in the commercial Court
are to be referred to a mediation session. Here, every party must indicate in their
pleadings whether they consent or oppose a referral of their case to mediation. No
opting out of mediation is allowed except by order of a judge of the Commercial
Court.46
The mediation proceedings are to be completed within 30 days of the referral,
although some limited extension of that time may be granted. The agreement
46 . Walde Mediation/Alternative Dispute Resolution in Oil, Gas and Energy Transactions: Commercially Superior to Formal Litigation and Arbitration?
28
reached between the parties at the Mediation Session is filed in Court as the
Consent Judgment in the particular case. Mediation sessions are conducted under
the auspices of the Centre for Arbitration and Dispute Resolution (CADER). The
mediation referral mechanism is expected to be rolled out to the other Divisions of
the High Court.
The anticipated mediation process is extremely informal and is done by trained
experts in the particular field of dispute (including non-lawyers) and is to last for a
maximum of two days only. It is important to note that there are a number
of legislative provisions on arbitration:
3.2 Municipal legislation
3.2.1 The Constitution of the Republic of Uganda, 1995
The Constitution of the Republic of Uganda CBMe into force on 8 th day of October
1995 by the Constituent Assembly, replacing the 1967 Constitution. Since its
publication the constitution has been amended three times.47
The Constitution of the Republic of Uganda, 1995 provides for exercise of judicial
power and the mandate of court under Article 126. Article 126 (2) (d)48 specifically
provides for promotion of reconciliation between parties.
In light of the above Court-based Alternative dispute resolution began to creep
into the Uganda Judicial system from the mid 1990s. The first driving factor for
change CBMe from the 1994 Justice Platt Report49 on Judicial Reform which
recommended the increased use of Arbitration and Alternative Dispute
Resolution alongside litigation and the creation of a Commercial Division of the
High Court. As noted above the constitution of the Republic of Uganda has been
amended thrice and latest commenced on the 30th day of December 2005,
The Constitution under Chapter eight, specifically Article 126 (2) provides that;
47 Per the preface in the Constitution of the Republic of Uganda [As at 15th February 2006] , that is The Constitution Amendment Act, No. 13 of 2000, No. 11 of 2005 and 21 of 200548 The Constitution of the Republic of Uganda [ As at 15th February 2006]49 Ibid
29
“in adjudicating cases of both a civil and criminal nature, the courts shall,
subject to the law, apply the following principles-”
Shortly thereafter, a major statement was made in the new 1995 Constitution of
Uganda which under Article 126(2) enjoined the courts to inter alia apply the
following principles;
(a) justice shall be done to all irrespective of their social or
economic status.
(b) Justice shall not be delayed;
(c)Adequate compensation shall be awarded to victims of
wrongs;
(d) Reconciliation between parties shaft be promoted and.. ..
.
(e) reconciliation between parties shall be promoted; and
(f) Substantive justice shaft be administered without undue regard
to technicalities.
A study of these provisions shows that the intention of the legislators is to implore
court, in as much as possible to expedite trial and ensure that justice is delivered
timely and that the parties thereto are involved in the decision reached. If indeed
followed to the letter, these Constitutional provisions will have the effect of causing
expediency of cases in all courts. And there would be no better avenue than
having matters resolved through Alternative dispute resolution. This in the end
would significantly cut down on the challenge of backlog and all its progenies.
The proper application of the constitutional principles in Article 126 (2) would
counter the traditional perceptions of adversarial dispute resolution methods
and call for change in favour of court based ADR.
What however, remains outstanding is the fact that the same Constitution has
provisions that inherently have the potential to delay discharge of cases.
30
On the other hand Article 126 (2)50 is not conclusive; it stops at laying down the
principles that should be followed in the exercise of judicial power. The article
does not clearly provide the means through which above mentioned principles will
be achieved. In particular Article 126 (2) d, encourages reconciliation between the
parties however, it does not specifically state the methods through which the
reconciliation will be attained.
3.2.2 The Judicature Act, Cap. 13An analysis of this section shows that the Act empowers courts to refer matters to
be tried before an arbitrator. The Act also gives the parties power to choose an
arbitrator of their own choice.
This Act makes the first reference to court-based Alternative dispute resolution
under its section 26. It provides that the High Court may, in accordance with rules
of court, refer to an official or special referee for inquiry and report any question
arising in any cause or matter, other than in a criminal proceeding. The report of an
official or special referee may be adopted wholly or partly by the High Court and if
so adopted may be enforced as a judgment or order of the High Court.
Section 2751 enjoins the High Court with the powers to refer any matter they deem
worth the cause for arbitration in accordance with the criterion espoused under the
Act.
Section 2852 of the Act, specifically spells out the mandate of the arbitrators
“… the arbitrators shall be deemed to be officers of the High Court and, subject to Rules of
Court, shall have such powers and conduct the reference in such manner as the High Court
may direct.”
Section 29 of the Act53 is to the effect that where a question of law arises in
arbitration, an arbitrator may present the question in form of a special case for the
opinion of the High Court. This clearly shows that any the Judicature Act creates a
platform for several problems to be settled under the Act can be resolved in
50 The Constitution of the Republic of Uganda, Article 12651 The Judicature Act Cap 1352 Ibid Section 2853 Ibid Section 29
31
arbitration. In addition Section 30 clearly gives court the power to impose costs as
it thinks fit.
Section 31 of the Act provides for remuneration of referees and arbitrators to
whom a matter is referred under an order of the High Court.
Further under Section 32 of the Act provides that the High Court shall not order
any proceedings to which the Government is a party without the consent of the
Government, and neither shall costs payable to Government be affected by any
inquiry made by an arbitrator. An analysis of the Judicature Act shows that the Act
caters for Alternative dispute resolution, for it advocates for Alternative dispute
resolution as one of the modes of solving disputes.
3.2.3 The Arbitration and Conciliation Act Chapter 4
In May 2000, Uganda introduced The Arbitration and Conciliation Act, 2000,
described as "an Act to amend the law relating to domestic arbitration, international
commercial arbitration and enforcement of foreign arbitral awards, to define the
law relating to conciliation of disputes and to make other provision relating to the
foregoing". This comprehensive piece of legislation consists of 73 sections divided
into 7 parts and two accompanying schedules. The largest part lays down the
principles governing arbitration, from the initial agreement to the final award. These
provisions for the most part reflect the principles expressed in the UNCITRAL
model laws. However, Uganda has chosen to diverge on certain points. For
instance, a sole arbitrator shall be appointed if the parties have not stipulated the
number to be appointed. English is in principle to be the language of arbitration.
Uganda's new Arbitration and Conciliation Act replaces the former Arbitration
Ordinance dating from 1930 and brings arbitration in Uganda in line with prevailing
international practice. A notable change introduced by the new Act is the widening
of arbitrability to cover any dispute arising from a legal relationship, "whether
contractual or not"54.
54 The full text of The Arbitration and Conciliation Act, 2000 was published in Supplement No. 7 of The Uganda Gazette No. 32, Vol. XCIII, dated 19 May 2000.
32
This act is very instrumental for it legalizes and sets the standards for the
operation of arbitration and conciliation. In addition the Act regulates the behavior
of the conciliator or arbitrator in the conduct of the arbitration process. The
Arbitration and Conciliation Act is very important for it incorporates into its
framework, the provisions of the 1985 United Nations Commission on International
Trade (UNICITRAL), Model law on International Commercial Arbitration and the
UNCITRAL Conciliation Rules 1976.
It is important to high light the fact that in comparison to the UNCITRAL Model
Law, The Act55 does not cater for immunity of an arbitrator. An example is drawn
from the High Court Commercial Division, where Alternative dispute resolution is
mandatory. When parties file pleadings; that is the plaint and written statement of
defence, they are mandated to attach Alternative dispute resolution summaries.
The effect is that before a matter is allocated a hearing date, the parties in the
case must go through the Alternative dispute resolution process. During the
Alternative dispute resolution stage some of the Advocates and parties turn out to
be hostile, in addition to the hostility a mediator may guide the parties to resolve
the case at hand. However, in the event that the case at hand involves sensitive
matters the Act does not provide for the immunity of the mediator.
This anomaly should be rectified because at the end of the day the mediators may
opt out of some matters, since they are not protected. And this would then defeat
the purpose of Alternative dispute resolution, and rather indirectly increase case
backlog.
Section 2 (1) (e) of the Act56 defines an arbitration agreement;
“ as an agreement by the parties to submit to arbitration all or certain
disputes which have arisen or which may arise between them in respect of
a defined legal relationship, whether contractual or not”
The Act is to the effect that in cases where parties have signed an arbitration
agreement, they cannot resort to court unless the terms in the arbitration
agreement have been met. The Act makes it mandatory for the parties with a
dispute to submit to the terms in the arbitration agreement.55 The Arbitration and Conciliation Act Cap 456 Ibid
33
Anthony Conrad 57 is of the opinion that;
“The stated purpose of the Act is to empower the parties and to increase
their autonomy. It has been the case that if an arbitration agreement
existed, the courts would not hear the case until the arbitration procedure
had taken place. Disputing parties are thus obliged to submit to the
provisions under the Act on the basis of an existence of an agreement to
arbitrate in the event that a dispute arises.”
Section 5 of the Act58 provides for stay of legal proceedings and is to the effect
that;
“A Judge or Magistrate before whom proceedings are being brought in a
matter which is the subject of an arbitration agreement shall, if a party so
applies after the filing of a statement of defense and both parties have been
given a hearing, refer the matter back to arbitration …”
The Act59 however, gives exceptions that in cases where the arbitration agreement
is null and void, inoperative or incapable of being performed or in cases where
there is not in fact any dispute between the parties with regard to matters agreed
to be referred to arbitration then Section 5 would not suffice.
Section 67 of the Act60 establishes the Centre for Arbitration and Dispute
Resolution. It should be noted that the Arbitration and Conciliation Centre is a body
corporate with perpetual succession and a common seal capable of suing or being
sued.
The Arbitration and Conciliation Act is critical in ensuring realization of the goal of
increased party autonomy and provision of appropriate and user-friendly rules of
procedure to guide parties, ensuring creation of an adaptable framework for
arbitration tribunals 61 to operate under as well as other default methods in the
57Anthony Conrad K. Kakooza (2000) , Arbitration, Conciliation & Alternative dispute resolution in Uganda- A focus on the practical aspects58 Supra Chapter 459Ibid60Ibid61 Section 17 of the Arbitration and conciliation Act. Cap 4
34
absence of the parties; own agreements, and the advancement of equality and
fairness in the whole process62.
The Act also establishes a body known as the Centre for Arbitration and Dispute
Resolution, which is intended to fulfill various functions defined elsewhere in the
Act. The Centre also devises rules for the implementation of arbitration,
conciliation and ADR processes63, establishes a code of ethics for, and maintains a
list of, qualified arbitrators, conciliators and experts, sets fees for arbitrators, and
facilitates certification, registration and authentication of arbitral awards and
conciliation settlements.
A further feature of the new Act is a set of model forms for use by the parties or the
arbitrator at different stages of arbitral proceedings. They include an agreement to
submit to arbitration following the occurrence of a dispute, an agreement on the
appointment of a single arbitrator and a form relating to the extension of the time
allowed for the arbitrator to make his award.
Since the introduction of the pilot project in 2003, court based Alternative dispute
resolution has taken a heightened significance in legal and judicial practice within the
``commercial court and The (Alternative dispute resolution) Rules64 have been central
in expediting the Alternative dispute resolution process.
The Act clearly refers to arbitration, Alternative dispute resolution methods. In addition
CADER as a body does not provide for Alternative dispute resolution but rather
provides for Arbitration.
62 Anthony Conrad K. Kakooza (June 1990), Arbitration, Conciliation & Alternative dispute resolution in Uganda- A focus on the practical aspects63 Alternative Dispute Resolution64 55 of 2007 and 10 0f 2013
35
3.2.4 The Civil Procedure Act, Chapter 71 and the Civil Procedure Rules S.I 71-1
The Civil Procedure Act65 which is here under referred to as the Act, makes
provision in civil courts and this Act commenced on the 1st day of January 1929,
this Act excludes any definition that is repugnant to natural justice as evidenced
from Section 2 which is the Interpretation Section.66 In addition this Act is made up
of ten (X) parts and one hundred sections (100)
Part VI of the Act67 provides for special proceedings and it specifically provides for
Arbitration, Section 60 of the Act68 specifically provides that;“All references to arbitration by an order in a suit, and all proceedings thereunder, shall be
governed in such a manner as prescribed by the rules. “
The rules in this case are the Civil Procedure Rules 69 and these rules provide for
Scheduling Conference and Alternative Dispute Resolution.
In 1996 the Chief Justice Mr. Wambuzi (as he then was, by Practice Direction
No. 1 of 1996 established the Commercial Division of the High Court
Paragraph 5 (b) of the said Practice Direction enjoined the commercial judges to
be ‘Proactive’, an essential ingredient for establishing a court based ADR
System.
In 1998 the present Civil Procedure Rules were amended by the Civil Procedure
(Amendment) Rules 1998 to include Order 10B. Order 10B rule 1 introduced into
the Uganda Judicial system the use of a pre trial scheduling conference and
provided -
“...The court shall hold a scheduling conference to sort out points of agreement and
disagreement, the possibility of Alternative dispute resolution, arbitration and any other form
of settlement. ......."
Order 10 rule 2 adds that;-
65 The Civil Procedure Act Cap 7166 Ibid67 Ibid, Section 6068 The Civil Procedure Act Cap 7169 Ibid Section 60
36
" (1) Where the parties do not reach an agreement under sub rule (2) of rules, the court may, if
it is of the view that the case has a good potential for settlement, order alternative dispute
resolution before a member of the Bar or of the Bench, named by the court.
(2) Alternative dispute resolution shall be completed within twenty-one days after the date
of the order except that the time may be extended for a period not exceeding fifteen days on
application to court, Showing sufficient reasons for extension.
(3)The Chief Justice may issue directions for the better carrying into effect of alternative
dispute resolution"
The passing of Order 10B truly reflects the fact that court based alternative
dispute resolution had clearly made its way in the legal system. No wonder the
High court commercial division in its effort to promote justice, reduce case
backlog among others ushered in compulsory court based Alternative dispute
resolution.
In final analysis, it is my considered opinion that there can be no doubt that when a legal
dispute arises then the claimants will go to their lawyer and about 85% of these lawyers
will issue a notice of intention to sue the other party in court. It is difficult to say whether
this is the preferred route of the claimant or it is the desired route for the lawyer. One can
almost say with certainty that almost without thinking it has become the automatic route.
This is not to say that litigation has been the sole alternative open to claimants in Uganda.
Uganda for example first got an Arbitration Act in 1930 but it was seldom used.
Furthermore Order 43 of the Civil Procedure Rules S.I 71-1 (first promulgated by general
Notice 607 of 1928) provided for Arbitration under order of a court5 but this also has
seldom been used. This could be referred to as the first "court based ADR".
Traditional perceptions against ADR have greatly reduced thus room for a greater
use of court assisted ADR. Particular break through has been made in Uganda
under the Alternative dispute resolution Pilot Project of the Commercial Court
Even though Alternative dispute resolution is not the only form of ADR. Its use
with in the court system is becoming good flag ship for court assisted ADR in all
it? Possible forms. For ADR to succeed in Uganda there is need for the Judicial
Officer to be proactive and encourage litigants to explore ADR before going into
fully-fledged litigation.
37
CHAPTER FOUR
DISCUSSION OF THE FINDINGS
4.1Introduction
The functions and goals of the Judiciary include providing easy access to justice
and the speedy resolution of cases which also aims at the reduction of the
backlog of cases in our courts. In an endeavour to achieve these goals, the High
Court of Uganda has introduced a “Multi-door” court house. This envisions a
court house with multiple dispute resolution doors or procedures. Mediation is
one such alternative dispute resolution door that the court has introduced. It is an
alternative to the adversarial dispute resolution system by which a litigant in a
case before court goes through the entire process of litigation which can be quite
lengthy and costly.
Mediation is simply a process facilitated by a neutral third party (the mediator)
who assists the parties to the dispute to explore various options and solutions
available in order to reach a mutual agreement. The mediator guides the parties
as well as encourages and assists them in deciding how to resolve their dispute.
Mediation in courts can be “Court Based” or “Court Connected”. The High Court
of Uganda has opted to use court-based mediation (CBM) in preference to court
connected mediation. The former refers to the mediation of cases filed within the
court which means that all civil and commercial cases filed at the court shall go
through the mediation process.
Currently, all the designated mediators are the Court personnel, namely
Assistant Registrars and Judges’ Clerks who through the assistance of the
International Law Institute – African Centre for Legal Excellence (ILI-ACLE), with
funding from the Millennium Challenge Account – Uganda, received intensive
38
training on Mediation theory and practice. The profiles of the Mediation
Personnel will be elaborated in subsequent articles.
4.2 Benefits of Court Based mediationAs the disputing parties and mediators are participants in the CBM process, the
parties in dispute feel that the negotiated settlement is achieved by them.
The process of mediation saves time. This is because the process is meant for a
period of two days to a maximum of 30 days as provided for by Rule 10 of the
CBM Rules. This means it brings the desired solution quicker for the parties as
compared to protracted litigation which may take years before completion.
Accordingly, Mediation enhances the speed fo the delivery of justice.
Because mediation is quicker, it can save the costs of a lengthy litigation and the
expenses of securing witnesses to court.
Those are the most basic advantages of Court Based Mediation,. More will be
discussed in the next issue.
Mediation is by far faster than litigation. The Mediation process lasts a maximum
of only 30 days (extendable only for very compelling reasons). The actual
hearing sessions last only 2 days or less. Litigation, on the average, takes 2 – 3
years. The speed in mediation is based on deliberate policy and law. But it is also
a function of the process itself. Mediation does not deal in the elaborate
documentation and desperate technicalities ingrained in the classical litigation
procedure. Instead, Mediation thrives on the simplicity, informality and alacrity of
process and procedure.
4.2.1 Mediation is credited for institutional efficiency Court-based mediation has its own downside. Rundle (2007) argued that the aim
of court-based mediation from the legal perspective is more towards institutional
efficiency particularly in reducing case backlogs rather than parties’ satisfaction
and just outcomes through creative problem-solving. In other words, court-based
39
mediation has a tendency to be settlement oriented. For instance, there is
evidence of a preoccupation with settlement rates in the Supreme Court of
Tasmania, as the success of court-based mediation was measured by the
number of mediations held and the number of cases resulted in mediated
settlement (Cox, 2004). An overzealous move to see the success of mediation
through high rates of settlement may diminish mediation attributes that
emphasize on the needs and interests of the disputants (Rundle, 2007).
Shaw (1989) argued that mediation within court sponsored or based programs
has become more like case evaluation or advisory settlement which seeks to
investigate facts or determine relative liability instead of identifying and exploring
the underlying interests, needs and constraints of both parties. Referral to court-
based mediation can turn out to be less like alternative process intended by its
proponent (Senft & Savage, 2003). Astor, (2001) identified a potential danger
that mediation will be distorted by its close proximity to the court. The court may
have influence over the process in court referred cases and the parties may feel
constrained by the framework of the law and procedural rules which limit the
boundaries of their negotiations. In a study to highlight the importance of
preserving the values of mediation in court-based mediation in Florida, it was
found that the institutionalization leads to the assimilation of authority and
formality of the court to the mediation program (Drummond, 2005).
In addition, because of its speed, Mediation yields abundant savings in time,
expense and relations. The attendant expenses (of lawyers’ costs, witness’ fees,
travel, accommodation and miscellaneous expenses) are commensurately lower
than the comparable expenses of litigation. The bottom line of all this is expenses
saved. But an even more salient saving shows up at the end of a successful
mediation, when the once antagonistic adversaries break their fists into open
palms to congratulate each other’s success in the triumphant settlement of their
dispute. This shaking of hands is symptomatic of the business or family
relationship saved, and the continuation of former ties. Litigation perpetuates the
40
Parties’ differences, and ultimately destroys their relationships – when only one
of them finally wins the case (most likely on appeal). Mediation leads all the
Parties to a win-win situation.
This research further established that litigation being bitterly adversarial, time-
wasting, money-consuming, and intimidating (with proceedings conducted in the
opaque mysteries of the judicial shrine, steeped in the harrowing glare of the
public eye), leads to a stressful process – at the end of which one of the Parties
is destined to lose everything. Litigation then, is a stressful gamble!
As against all that, Mediation is informal, transparent and is conducted before a
trusted, neutral third party having no accoutrements of the judicial intimidation
and mystique; nor, indeed, any authority to pass judgment in the matter. It is a
user-friendly environment in which the Party is boss.
It was further established that mediation is the phenomenon of Empowerment of
the Parties. In mediation, the Parties ‘choose’ their own court and judge (the
Mediator). Even in Court-Based Mediation, the Parties have an implicit right to
object to a particular Mediator assigned them by the Court, until they mutually
agree one, of their own liking, from the Court’s many mediators. Also, the Parties
choose their own law, since they agree to negotiate on their own terms –
unhindered by strictures of legal technicalities, procedure and practice. Similarly,
the Parties are their own premier spokespersons (with their counsel essentially
taking an advisory role). Likewise, it is the Parties’ own freely agreed terms that
will drive the proceedings and dictate the decision-making. What concessions
they make, what admissions they profer, and what positions they prefer, will
ultimately coalesce in their own mutual settlement of the dispute. To that extent
then, the Parties are the ones who write their own judgment in the case. All these
elements of Mediation are a notable Empowerment of the Parties.
Arguably most importantly, is the Advantage of a win-win situation for every Party
in Mediation. Given that Mediation is a negotiation of terms between Parties, its
41
end result (the mutual settlement agreement of the dispute), mirrors every Party’s
give-and-take; freely taken and received by the other Party. As such, each Party
wins some, and loses some – to the end that all may attain a win-win position. It
is for this reason that rarely, if ever, is there an appeal of a mediated case: for
there is no ‘aggrieved’ Party.
As can be seen from the definitions of mediation above, its advantages are
perceived to lie in the involvement of a third party (mediator) in assisting the
disputants to achieve a mutual settlement. The essence of the mediators’ role is
their non-alignment with either party in acting as a neutral intermediary to
facilitate progress towards settlement (Roberts & Palmer 2005; Street,
2003).Although mediation is primarily used to benefit the parties and the courts in
resolving disputes quickly, it may also assist in reviewing and narrowing the
issues for trial if it fails (Aibinu et al. 2010). In addition, the disputants can
develop a better appreciation of their own case and that of their opponents
(Zakaria, 2010). Some of the notable major benefits of mediation are discussed
below.
4.2.3 Mediation encourages confidentiality and privilege One advantage of mediation for parties is its confidentiality. It allows for a
restricted sharing with the mediator of the party’s case including the revealing of
embarrassing and potentially damaging information. This is done on the basis
that nothing is to be disclosed to the other party without express authorisation,
the confidential receipt of such information from both sides can help the mediator
to facilitate a mutual settlement (Armstrong, 2007). This setting is conducive for
parties to make concessions without concerns over its divulgence should
mediation fail (Bingham, 2008; Parke & Bristow 2001). The negotiations for a
settlement in mediation are wholly on the basis of without prejudice (Street,
2003). The law governing settlement privilege is given statutory recognition in
almost all jurisdictions. Consequently, it is generally assumed that any protection
applicable to settlement negotiations under the common law and existing rules
regarding compromise and settlement should be similarly applied to protect the
42
confidential communications in mediation which is vital to its effectiveness
(Brown, 1991). Nevertheless, in some circumstances, confidentiality itself may
work injustices that would undermine the integrity and viability of mediation
(Macturk, 1995). This issue is discussed in the section which deals with the
argument against mediation.
4.2.4 Mediation encourages party empowerment and self-determination Mediation is also considered beneficial as it is said to empower the parties
compared with other forms of dispute resolution. It allows parties a greater
involvement and engagement in the process and in exploring various possibilities
in the outcomes. It seeks to restore the central decision-making role to the
disputants whose problem it is (Loong Thye & Boon Leng, 2003). According to
Sturrock (2010), the parties’ control in mediation is about the democratisation of
justice. The extent of the parties’ control includes the power to choose their
mediator, the procedures that will apply, the venue, and, the means to ensure
confidentiality (Barbee, 2007). It is argued that the greater control that the parties
have over their dispute and the greater participation they have in decision making
leads to greater commitment to the resolution (Faulkes, 1986).
4.2.5 Flexibility and informality It is also argued that the outcome of mediation is durable and flexible because it
accords to the needs of the parties as it arises from their own efforts, freely and
without coercion (Nicholson, 1991). As the agreement reached is based on
mutual consent in an informal and friendlier environment, it helps to preserve and
improve the parties’ relationships (Sussman, 2009).
This is particularly so for those people who prefer a less intimidating process
where they have some freedom and opportunity to voice their concerns and
those who want their disputes to be resolved by them informally without
compromising their relationship (Fiadjoe, 2004).
43
4.3 The Arguments against Court Based mediation While the rhetoric behind mediation is widely acknowledged and strongly
supported by a number of distinguished mediation scholars, judges and
mediation practitioners, there are important criticisms of mediation which should
be considered to provide a more comprehensive account of the theory and its
assumptions. The criticisms suggest that there are concerns about fairness
including violating the right of access to justice, issues of representation,
inadequacies in addressing inequalities between disputants, lack of procedural
safeguards, confidentiality, lack of precedent, the phenomenon of the repeat
user, and mediation as a form of second class justice. These issues will now be
discussed.
4.3.1 Denial of Access to Justice It has been argued that mandating or compulsory mediation denies parties’ right
of access to justice which means the right to have a dispute resolved by a court
(Stein, 1998). On the other hand, it has also been argued that ordering parties to
mediate does not prevent them the right to a trial as it merely imposes a short
delay to allow an opportunity for settlement (Lightman, 2007). At the same time, it
could have a far reaching effect as it could direct and put parties together to the
table of negotiation and often ending in a result more favourable than a trial
(Abrams, 2000). Compulsory mediation creates a safe environment where
neither party has to suggest it since a proposal for mediation may be interpreted
as a sign of weakness by an opponent (Bergin, 2007).
4.3.2 Imposing mediation on parties is unfairWhilst it has been recognised by some legal scholars that disputants (including
their lawyers) will only consider mediation if it is imposed on them by mandating
it, some others believe that its effectiveness and legitimacy will depend on their
consensual agreement to participate in it in good faith (Mack, 2005). For
instance, in some jurisdictions, compulsory mediation or referral to mediation by
the court has been criticised as being done in the absence of the consent of the
44
disputants. Disputants may feel coerced to settle out of fear of later sanctions
from the court and could lead to dissatisfaction with the outcome (Drummond,
2005). Further, if mediation is forced on unwilling parties, it may only result in
additional costs and delay in the court’s determination of the dispute which
demeans its perceived effectiveness.
Compulsory mediation might also affect the parties’ right to commence an action
in court (Boulle & Nesic, 2001). This could happen if parties are ordered to
mediate prior to the lodgement of their cases in court. For instance, in
jurisdictions where there is no power to suspend the running of a limitation period
while mediation is being attempted or still ongoing, this might affect the parties’
rights and remedies through their failure to initiate judicial proceedings before
they are barred. Strategically, it may be good for the defendant who is an
unwilling party to the mediation to participate in it as ordered only to delay the
initiation of court proceedings by the plaintiff in the hope that the limitation period
expires before mediation does (Alexander, 2009).
4.3.3 Right of representation is denied in most casesThe impact of the lawyers’ presence in mediation has been a controversial issue
(Rueben, 2000). Some believe that representation by a lawyer is not needed in
mediation due to its informality and in allowing parties to resolve their own
disputes. Others consider that such representation is needed to overcome
imbalances of power such as knowledge of legal rights which is essential to the
exercise of the parties’ self-determination in making a fully informed decision
(Agusti-Panareda, 2004). Those who oppose the presence of lawyers in
mediation claim that they are not helpful in resolving disputes for many reasons.
One is that the presence of lawyers in the process may restrict or limit the
parties’ opportunities to express their views as lawyers are likely to play a
dominant role (Rosenberg, 1991). Another is that lawyers’ legal background and
training will result in an approach which is more contentious than problem-solving
which may reduce the likelihood of settlement (McEwen et al. 1995). However,
45
the disadvantages of having parties represented in mediation have to be weighed
against the right to be represented in the light of concerns for fairness,
particularly for parties who are in an inferior bargaining position. Without
representation, parties may be coerced or misled into accepting a settlement
which they may otherwise appear to be satisfied. Related to this issue is the
problem of inequality of power considered next.
4.3.4 Inequality of power Inequality or power imbalance may impact on justice in mediation. It exists
especially where disputants have different capacities or abilities to negotiate
(Spencer & Brogan, 2006). The power dynamics can be attributed to, or as a
result of, the difference between the parties: financial resources; degree of
knowledge and negotiation skills; level of relationship with the mediator; and,
personal respect and status (Carpenter & Kennedy, 1988). For instance, a large
corporation or institution may be able to commit more financial resources to the
process in assembling evidence than an individual. Similarly, an individual with a
low level of knowledge and poor negotiation skills may find it difficult to exercise
self-determination than a more articulate and knowledgeable individual.
This power imbalance can distort the perceived fairness of the outcome as the
powerful party has the ability to coerce or even deceive the weaker parties into
agreeing with a settlement (Sternlight, 2008). The impact of power dynamics or
parties inequality in the playing field can also influence a weaker party into
accepting a settlement out of need, ignorance or low expectations (Frey, 2001).
This may cause injustice as only the dominant party’s needs and interests may
be met. The mediators’ role is also limited in addressing power imbalances as
their impartiality might be compromised. The parties’ power over the process and
outcome is also affected if mediators actively intervene into the process (Lobel,
1998). Zakaria, (2010) suggests two approaches by which mediators may
intervene. One is the sign them up approach and the other is the strong
interventionist approach. In the former, the mediator simply informs the parties to
46
seek independent legal advice or otherwise leave the settlement as it is. In the
latter the mediator advises parties on matters which they might have overlooked
in coming to their decision.
4.3.5 Repeat Users of Mediation Imbalance of power between disputants in mediation can also arise from the
phenomenon known as the repeat user of mediation (Thornton, 1990). The
repeat users of mediation who are familiar with the process may manipulate or
strategically used mediation to their advantage (Brooker, 2010). Thornton (1990)
argued that in equal employment opportunity cases, repeat users are mostly the
representatives of large corporations who gain an advantage through the
knowledge and skills learned in mediation over their opponents who are
generally unrepresented woman workers. The repeat users’ increase familiarity
and skill with mediation may contribute to their negotiating favourable resolutions
than non repeat or ‘one shot’ players.
4.3.6 Lack of procedural safeguards Whilst the flexibility of mediation in allowing parties to come to their own
agreement is a key advantage, it also represents a key criticism. Its critics have
argued that the relaxation of procedural safeguards and due process protections
which are otherwise available to the disputants in the formal justice system could
present the greatest danger of abuse (Drummond, 2005). For instance, Brunet
(1987) argued that mediation lacks effective discovery procedures to require
parties, who may be unwilling, to give the substantive disclosure needed to reach
a just result. The discovery of information helps to equalise power imbalances as
it gives the weaker party the chance to obtain more facts about the disputes that
might otherwise remain in the exclusive possession of the powerful party
(Delgado et al. 1985).
On the other hand, having full disclosure will not reduce the possibility of bias
and prejudice. This is because unfettered disclosure may be used inappropriately
by an unscrupulous opponent. This is the reason why some lawyers look at
47
mediation process as a discovery tool rather than a settlement device (Rueben,
2000). The risk of prejudice is even greater when it involves sensitive and
delicate issues which require strict confidentiality. This potential of bias can be
minimised by having rules of procedures and evidence that clearly address the
scope of the process, exclude irrelevant, intrusive and damaging information
(Delgado et al. 1985).
Caucus mediation, where one party meets the mediator individually in the
absence of another, is said to be inconsistent with due process and rules of
natural justice (Twyford, 2005). Further, the conduct of mediators in giving their
views on the merits and outcomes of a case, a technique commonly used in
evaluative mediation, could create an appearance of bias towards or against one
party or another (Gunning, 2004).
Some of the procedural safeguards in the formal court system which are not
available in mediation include: a guaranteed place in the trial in which to present
his or her case; the ability to present and test evidence to rebut the other
disputant’s case; a guarantee of procedural justice, a systematic review of the
third party (judge); and, an official record of the reasons for the decision (Van
Gramberg, 2006).
4.3.7 Derailment of confidentiality Where parties are of equal standing, the creativity of their solutions, for instance
a confidential settlement which benefits the disputant who raised the issue but
not others who may have the same interests may also violate community or other
public standards of behaviour. In other words, the confidentiality of the process
can hide a particular outcome which may have caused greater public scrutiny of
behaviour if it is an open and public record. For instance, companies could
misuse the confidentiality feature of a mediated settlement to conceal their own
bad practices and activities from the public eye under the pretext of safeguarding
trade secrets or business operations (Kotz, 1996). Further, in the absence of
48
public scrutiny in private disputes, an analysis and research into the plight of
disadvantaged groups becomes difficult. An example is violence against women.
One issue is domestic violence and central to it is power imbalances in family
disputes which are generally considered to be private matters which makes it
impossible to scrutinise any wrongdoings (Imbrogno, 1999). Imbrogno (1999)
argued that the lack of public scrutiny and discussion of the domestic violence
issues may hinder the development and vindication of battered women’s legal
rights.
4.3.8 Prevention of precedent Although the private resolution or settlement in mediation may allow for various
remedial outcomes specially tailored to the parties’ needs, it creates no
precedent. Thus, future disputants maybe greatly disadvantaged in the absence
of a precedent which might otherwise beneficial in similarly recurring disputes
(Applebey, 1991). Private settlements may also affect and stifle the development
of further case law (Low, 2011). As mediation results in a private settlement, it
implies that the only interested parties to the dispute are those participating in the
process (Van Gramberg, 2006). It is unlikely that the public would learn from the
good or bad experiences of the disputants in previous cases. This reinforces
doubts over whether justice is achieved in such confidential environment.
4.3.9 Risk of favoritismAs parties in mediation are free to select their own mediators, there may be an
issue of favouritism in situation where one party knows the mediator better than
the other, particularly when parties have established a relationship with the
mediator from previous mediation. Secondly, the perception of bias can be easily
targeted at lawyers who act as mediators because of their general contact with
the other lawyers in the same profession. These other lawyers might have
represented their clients in the mediation session.
49
The lawyer-mediator’s role poses a challenge to lawyers in their transition as
advocates for a single party to a neutral and independent mediator who helps
both parties to achieve settlement that serve their needs and interests equally
(Cukier, 2010). The author argues that as mediation is being commercialised, the
tendency for lawyer-mediators to commit breaches of ethical guidelines is
increasingly likely. There is also a possible risk of abuse where the lawyer-
mediator’s prior knowledge of the privilege communication (lawyer-client
relationship), might be used in a manner adverse to the party giving that
information to a lawyer turned mediator (Riskin & Westbrook, 1997).
Judges acting in the capacity of mediators have been criticised due to the role of
a judge as an adjudicator and not a facilitator. The next section looks into some
of the arguments against judge-led mediation.
4.3.10 Dilemmas of judge-led mediation The main concern in the literature of judge-led mediation is that judges might be
too forceful in their dealings with parties and might rely too much on their judicial
authority to bring the parties to an agreement. Judges may find it difficult to
‘change hats’ to become more like facilitators in resolving disputes than being the
decision makers (Zalar, 2004b). On the other hand, the disputants may
experience coercion as they may lose control of their dispute through the judges
asserting the position of decision-makers. This is in conflict with the core principle
of mediation (Roberts, 1988).
Some writers are very outspoken in their criticisms of the undesirable aspects of
judge-led mediation. These include Mohamed Abdullah (2008) who claimed that
judges might be motivated to produce settlements to overcome caseload
pressure by employing ‘arm twisting’ tactics under the cloak of mediation. He
further stressed that because of their traditional adjudication skills and directives
style, judges would make the mediation process no different to litigation. This has
led to arguments over how far judges can go in expressing their views without
50
creating an appearance of bias or possible accusations of favoritism (NADRAC
2009b). Due to the concern over the competency of judges as mediators, Alfini
(1999) suggested that they should undergo training to become real mediators.
Schuck (1986) argued that the active role played by the judge to affect settlement
can poses risks to justice in three circumstances: judicial overreaching, judicial
over-commitment and procedural unfairness. By judicial overreaching, he means
that although the judge in general cannot punish lawyers who are disinclined to
promote a settlement, the danger remains that lawyers interpret judicial
pronouncements and actions as ‘thinly-veiled coercion’. His argument is based
on the absence of a consensus as to what constitutes judicial impropriety; the
discussions in the mediation process are often highly emotional and perceptions
are based on interpretations; and, the unavailability of transcripts or records of
the proceedings. A second risk to justice may be a tendency for judges to be
over-committed to an outcome with finality which may compromise the needs of
the parties over a rush settlement. Thirdly, there is risk to justice in the informality
and the confidentiality of mediation which may threaten procedural fairness. This
includes among others the parties’ participation in the process, the treatment
afforded to them and the openness of the process. For instance when the judge
meets privately with one of the parties, in a caucus session, due process is
wanting as the other party is unable to rebut any allegations made in his or her
absence (Schuck, 1986).
51
CHAPTER FIVE
CONCLUSIONS AND RECOMMENDATIONS
5.1 Recommendations
Related to the issue of establishing codes of practice and ethics for those who
undertake court-connected mediation is the accompanying training of mediators.
This strategy emerged from the interviews and survey in the following
suggestions:
To develop a special registry in the court to register mediation cases
staffed by appropriately skilled personnel;
Training of the registrars to evaluate cases for mediation before they go to
judges for mediation;
Training of judges in mediation;
Appointment of more judges to undertake the mediation role;
Enlisting a panel of trained and qualified mediators for the parties’
selection; and,
Having an administrative process to monitor and supervise the cases
referred to outside mediators chosen by the parties.
Create comprehensive mediation user guides including a video for parties
and their attorneys.
Consider whether to conduct research focused on other mediation
contexts, such as family mediation, and consider how, if at all, the
observations and conclusions of the Task Force concerning
preparation, customization, analytical techniques, and persistence
might be relevant to those other practice contexts.
Develop recommendations for how mediation training programs can be
responsive to user concerns related to preparation, customization,
analytical assistance, and persistence.
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Examine how to use mediator analytical techniques in civil cases in which
parties are represented by counsel, consistent with high quality
mediation.
Promote local group discussions with mediation users, conducted by
state and local Bar Associations and others.
Develop brief practical application pamphlets for mediation users
(lawyers and parties) and for mediators based upon the Task Force’s
research efforts, experience, and expertise. The pamphlets will highlight
what mediation users or mediators should consider with regard to
preparation, customization, analytical assistance, and persistence in
order to have high quality mediation.
5.2 ConclusionThe study found that judges, lawyers and the public, including the disputants, are
the three main groups with some resistance to court-connected mediation. First,
judges are used to adjudicative roles in adversarial trials and have no experience
of mediation techniques. Some judges felt uncomfortable with mediation due its
informality. Second, lawyers’ resistance is mainly related to concerns about loss
of income. Another reason is that their training and experience in litigation has
equipped them with the advocacy skills to argue cases in court. As a result,
lawyers tend to act adversarially in mediation which may protract reaching a
settlement. Finally, the public’s belief that disputes should only be resolved in the
court was also identified as barrier to court-connected mediation. As noted
above, the research also found that the affordability of the court fees contributes
to the parties’ preference for litigation.
In a nutshell, the fact that mediation is increasingly becoming useful as a dispute
resolution method in Uganda has been noted. This is attributable to the failure
and delays in our judicial system and the technical nature of matters coming up
for resolution. Mediation is more appealing than other ADR methods in that it is
not new having been a key dispute resolution method in the African communal
set-up. Further, the fact mediation still operates in a legal lacuna is also
53
highlighted. The proposed legal amendments to the Civil Procedure to introduce
the Court based mediation are also discussed. Case studies examined painfully
show that Uganda is among the few black sheep in legislating on mediation other
countries having gotten over it long ago. The Ugandan legal framework on
mediation especially provides good food for thought for legal reforms in other
jurisdictions.
The research further found that there is still more which needs to be done to
improve the effective implementation of court-connected mediation in Uganda. A
few changes have also been adopted in Uganda such as the introduction of the
Mediation Act and the Rules of Court. This legislation and the rules have opened
a new era in the development of mediation in Uganda and the process is now
considered as significant as litigation but its application has not yet had a major
impact on court-institutionalised mediation.
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