a). Is Alternative Dispute Resolution (ADR) against human right?

Discuss
In the case of Cult Vs Head, Oliver L.J defined Alternative Dispute Resolution (ADR) as the
range of procedures which serve as an alternative to the judiciary procedures of litigation. ADR
is a term generally used to refer to informal dispute resolution processes in which the parties
meet with a professional third party who helps them resolve their dispute in a way that is less
formal and often more consensual than is done in the courts. It encompasses a broad range of
mechanism and processes designed to supplement the traditional courts litigations by providing
more effective resolution mechanisms.
In other words, it’s a procedure for the settlement of dispute by means of other than
confrontational and relationship destroying litigation. ADR is a dispute resolution process and
techniques that act as a means for disagreeing parties to come to an agreement, short of litigation.
It’s a collective term for the ways that parties can settle disputes with or without the help of a
neutral third part. ADR is a collective description of methods of resolving disputes otherwise
than through the normal trial process1.
ADR is composed of mediation, negotiation, conciliation, arbitration.
Human rights are entitlements that accrue to a person simply because he or she is a human
being. In the case of Austin Vs Commissioner of Police for the Metropolis 2 defined human
rights as norms that describe certain standards of human behavior and are regularly protected as
natural and legal right in municipal and international law. They are the basic entitlements or
minimum standards to be met for individuals to live with dignity. Most notably, human rights
are founded on the respect for the dignity and worth of each person, Human rights are
inalienable meaning you cannot lose them because they are linked to very fact of human
existence. They are inherent to all human being but in particular circumstances some may be
suspended or restricted for example when found guilty of crime.

Human rights are interrelated, indivisible and interdependent, you cannot be denied a right
because it is less important or non-essential. Different human rights are intrinsically connected
and cannot be viewed in isolation from each other. The enjoyment of one right depends on the
enjoyment of many rights and on one right is more important than the rest. Human rights are also
universal meaning they apply equally to all people everywhere in the world and with time limit.

1
Halsey Vs Milton Keynes General NHS Trust [2004] WLR 3002.
2
[2009] UKHL 5
Every individual is entitled to enjoy his or her human rights without distinction of race or ethnic
background3.

Human rights are formally expressed and legally guaranteed by international human rights
law. The law obligates states to ensure and implement human rights and restrains states from
violating human rights. YES ADR IS AGANST HUMAN RIGHTS.
In Uganda, human rights are provided under chapter four from Article 20 to 444, human rights
are enforced by man organization but mostly by the Uganda Human Rights Commission which is
established by the 1995 Constitution of the Republic of Uganda 5. The 1995 Constitution of the
Republic of Uganda consider international instruments like the United National Universal
Declaration of Human Rights6, the African Charter of Human Rights7. The Constitution provide
under Article 28 provide for access to justice to all parties in proceeding through ADR
mechanism as provided for under Article 126(1d)8 and other enactments like Arbitration Act and
Conciliation Act., Civil procedure Rule9, Land Act under section 88, Magistrates court Act under
section 16 and 160 and many more others which were passed by parliament to speedy justice
mechanism of ADR.

Despite the developments, the position of ADR and human rights is still a contentious among
tradition lawyers and academics. It’s important to note that the Constitution of Uganda is drafted
in a manner that any violation of human rights were avoided.

In the determination of civil rights and obligation or criminal charge, a person shall be entitled to
a fair, speedy and public hearing before an independent and impartial court or tribunal
established by law. Therefore the fact that the constitution, the supreme law of the land
advocates for fair, and speedy trial which principle is in line with the advantage of ADR being
time saving indicates that ADR promotes Human Rights. In Golder Vs United Kingdom10
where it was held that a right to court is absolute and can’t be limited, where there is a
mechanism that provides public hearing.

3
Human Rights, Nature and Constituents.
4
The 1995 Constitution of the Republic of Uganda.
5
From Article 51 to 58, chapter four.
6
Article 45.
7
Article 24 of the Charter.
8
1995 Constitution of the Republic of Uganda.
9
Order 12 and 47
10
(1975) ECHR 21
This means that ADR is fair or there is procedural justice. This is due to the fact that there is
neutrality, substantive participation of both parties hence both parties’ vies are being considered
and their concerns are taken seriously.

In addition, Article 126 (2d) in adjudicating case of both civil and criminal nature, the court
shall subject to the law applying the principle of reconciliation by promoting. ADR especially
mediation and conciliation by promoting it. This confirms to the main essence of ADR which is
to promote and improve a good relationship between the parties.

In conclusion, Uganda is outstanding in its legislative efforts to incorporate ADR in its legal
system. The 1995 Constitution provides for the promotion of conciliation in all matters handled
by the judiciary.
b). Halsey Vs Milton Keynes General NHS Trust [2004] WLR 3002
This was an appeal case where the judge wrongly awarded Milton Keynes general NHS yet it
had refused to go into mediation despite the several times they had been invited to do so.
In this case they upheld the principle of Lord Chancellor said that ADR will be considered and
used in all suitable cases where the other party accepts them. And this is because the ordering of
parties to go to court will be violating their right to access court as stated in the case of Deweer
Vs Belgium11, where according where it was stated that compelling parties to arbitrate would be
regarded as an unacceptable constraint on the right of access to the court and so violation of
article 6 of the her and so a rule was laid that unsuccessful party is order to pay costs to the
successful party.
Facts 
A claim was brought by Lilian Halsey pursuant to the provision of the fatal accident act 1976
(amended) in relation to the death of husband Bert Halsey. On 27th June 1999 Milton Keynes
general hospital. At the time of his death he was 83 years of age and so the claim arose out of the
negligent treatment while he was a patient at the hospital. He was transferred to the hospital on
25 the June 1999 at that time he was suffering from severe serious health problems and it was not
in dispute that his life expectancy was cut short.
He was fed by means of a nasogastric feeding tube that was incorrectly inserted and so instead of
directing the liquid food in the stomach, it was instead directed to his left lung. And so following
his death post mortem examination was performed by Dr. Mayers a sultan histopathologist who
had been employed by the defendant the trust and so she concluded the cause of Bert’s death was
airway obstruction that was brought about by the introduction of nasogastric nutrition into the
airway and the lung as a result of the insertion of the nasogastric tube into the major airways.
An inquest was held into the deceased’s death, his coroner requested statements from medical
and nursing staff mostly those who had been involved in the deceased’s care at the hospital, he
instructed Messre Osborne to attend to the inquest on behalf of the family. However the trust
refused to meet the cost of OMM’s (Osborn Morgan) preparation and also attended the inquest.

11
(1980) 2EHRR 439 
This was held on 14th January 2000, at that time, coroner heard evidence from several nurses Dr.
Mayers and Dr. Lanzore miller but both doctors disagreed Dr. miller disagreed with Dr. Mayer’s
view that the nutrition had altered the airway to the lungs due to the insertion of the nasogastric
tube into the major lung.
By 18th January OMM informed the trust that the deceased’s family was prepared to accept
payment of 75000 bereavement damages together with a contribution towards the costs.
However on 4th February the solicitors of the trust replied back saying that they had been
instructed to take a necessary step to resist the claim. On 7th February OMM asked if they were
prepared to refer the matter to ADR, mediation to ensure unnecessary costs 
On 6th April 2000, OMM wrote to the secretary of state for health giving him early notice of the
proceeding saying that he sought to meet, negotiate and mediate the claim with least amount of
costs to the NHS but unfortunately they had rejected it.
On 14th march 2000, trust solicitors replied to them saying that they did not accept that there was
a claim arising out of the care provided to the deceased and all necessary steps taken to resist the
claim would be done,
Issue

Whether a party has acted unreasonable in refusing ADR.

The fact that a party unreasonably believes that his case is watertight is not justification for
refusing mediation, but the fact that a party reasonably believes that he has a watertight case may
well be sufficient justifies for a refusal of mediation if mediation can have no real prospect of
success impunity.

The established position in the UK has been that, while the court may strongly encourage the
parties to engage in ADR (including imposing costs sanctions for unreasonable refusal to
mediate), this power stops short of compelling unwilling parties to do so. The reason was that
such compulsion will amount to unacceptable obstruction to the parties, rights to access to the
court, in breach of the Article 2612.

In addition to the above, the judges argued that, the fact that, in ADR, there is normally no award
of damages to a successful party, this would infringe on the parties’ rights to award of damages
12
European Convention on the Human Rights.
whose major rationale is to restore the parties back to the position they were in before the injury
hence the ruling in the that case.

Holding
Lord Justice Dyson said ‘The court’s role is to encourage not to compel but In deciding whether
to deprive a successful party of some or all of his costs on the grounds that he has refused to
agree to ADR, it must be borne in mind that such an order is an exception to the general rule that
costs should follow the event. In our view, the burden is on the unsuccessful party to show why
there should be a departure from the general rule.

The fundamental principle is that such departure is not justified unless it is shown (the burden
being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree
to ADR.’ An effective compulsion to arbitrate might in human rights law be an unacceptable
restraint on a party’s right of access to court.

Hence, in conclusion therefore, following the ruling in the case of Halsey Vs Milton Keynes
General NHS Hospital, ADR is against human rights due the above reasons advanced by the
judges in the court. However, ADR is not against Human Rights. This is mainly due to the fact
that the constitution of the Republic of Uganda provides for fair trial and urge for the promotion
of conciliation between the parties, which can only be achieved in an out of court litigation such
as Negotiation, mediation and conciliation.
 GROUP TWO PRESENTATION

Alternative Dispute Resolution

NAME: REG. NO. SIGNITURE;

AKELLO EUNICE MERCY 17/U/1844/GBL/PS

ARACH SANDRA 17/U/1853/GBL/PS

DUNCAN ISABIRYE KENETH 17/U/1858/GBL/PS

KOMAKECH GEOFFREY 17/U/1864/GBL/PS

OGINGA

OTING ELIZABETH 17/U/1889/GBL/PS

REFERENCE
The 1995 Constitution of the Republic of Uganda

The civil procedure act cap 71

The judicature act cap 13

The judicature mediation rules 2013

The magistrates court act cap 16

Local government act

Land act 

Local council act 

Human Rights, Nature and Constituents

Cult Vs Head

Austin Vs Commissioner of Police for the Metropolis [2009] UKHL 5

Halsey Vs Milton Keynes General NHS Trust [2004] WLR 3002.

Golder Vs United Kingdom