29/7.

/2022

A PUBLIC LECTURE ON
ADR AS A PRACTICAL LEGAL PRACTICE IN ENHANCING ACCESS TO
JUSTICE.
AT
GULU UNIVERSITY, FACULTY OF LAW
2022

Ass.Prof.Dr.Shadat Ssemakula.Mohmed
capataindrshadat@gmail.com 0783112525
LLB, LPC, LLM (UK),Mphil,(wales) PHD ( UK)
( Secretary, Uganda Law Deans Forum)
 INTRODUCTION:
What is Alternative Dispute Resolution (ADR)?
• ADR is a non-legal and informal process that
the parties enter voluntarily .
• This, the judiciary has made it mandatory for
the parties to a dispute to always first consider.
• This automatically means that parties to a
dispute who file a civil action in court must
first attempt to settle the dispute out of court
before judge or a magistrate can hear it.
• When there is a dispute, it warrants a
mechanism of resolving it, this can be
through mediation, arbitration, negotiation
or reconciliation.
• The Uganda Judiciary now provides Court
Annexed Mediation. The Centre for
Arbitration and Dispute Resolution
(CADRE) also provide for it. This is a
statutory body created by the Arbitration and
Conciliation Act Cap 4.

See Arbitration and Conciliation Act S.67 Cap 4.

FORMS OF ADR
It is composed of

• Mediation,

• Arbitration,

• Conciliation

• Negotiation
 K
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 MEDIATION
• Mediation is the process by which a third party
called mediator facilitates dialogue or communication
in a structured multi process between parties in the
dispute in reaching a mutually agreed resolution of
the dispute as provided under Rule 3 of the
Judicature mediation Rule 2013.
• This means that those parties; chose mediation
voluntarily ; they can not be forced or coerced to
mediate.
• The only exception to this rule is court –annexed
mediation which is mandatory as provided under
Rule 4 of mediation Rule 2013.
MEDIATION:
There are three types of mediation:
• Facilitative Mediation commonly used by all
countries: where the mediator only facilitates the
mediation process.
• Evaluative Mediation, the mediator has the
advisory role, in that its practitioners evaluate the
strengths and weakness of each sides’ argument and
advise on whether they should go to court by
predicting what the judge would decide, based on
the facts before him. This is what is more practiced
by the commercial court judges in Uganda. ( see Art
141,29,15 of Rwanda on Ubunz commitees)
Transformative Mediators: this style looks s at
the conflict, as a crisis in communication, and
seeks to help resolve the conflict, thereby
allowing people to feel empowered in themselves,
and better about each other.
LEGAL FRAMEWORK OF MEDIATION

• Constitution of Uganda 1995

• The Civil Procedure (Amendment Rules) 1998
• The Judicature Act Cap 13
• The Judicature (Mediation Rules) 2013
• The Magistrate Court Act Cap 16
• Employment Act 2006
• The Land Act Cap 227
• The Local Council Courts Act 2006
• The Investment Code Act Cap 92
• Non- Performing Assets Recovery Trust Act Cap
95
• Practice Direction No.1 of 1996
• Tax Appeals Tribunal Act Cap 345
• Judicature Act, Cap 13
 HISTORICAL PERSPECTIVE
The constitution of 1995
- Article 126 (2) (d)
- reconciliation shall be promoted
Lord Woolf Report, 1996
“Access to justice”
Why the Report?
Civil justice system, was:
Too slow, costly & benefited the rich
Reforms in UK
Recommendation of WOOLF REPORT
a) The civil justice system must be, accessible, fair and efficient,
and
b) The rules must be simple and simply expressed
 REFORMS IN UGANDA
Justice Platt Report 1994
Recommendations
1. Creation of the Commercial Court Division
2. Amendment of CPR to make judges pro-active
3. Introduction of Scheduling Conference
4. Introduction of ADR in courts
OTHER JURISDICTIONS
Florida USA
“process whereby a neutral and impartial third person acts to encourage and
facilitate the resolution of a dispute without prescribing what it should be.
It is an informal and non‐ adversarial process intended to help disputing
parties reach a mutually acceptable agreement” See - State of Florida's,
Rules for Certified and Court Appointed Mediators.
South Africa:
“process where a mediator assists the Parties in actual or potential litigation
to resolve the dispute between them by facilitating discussions between the
Parties, assisting them in identifying issues, clarifying priorities, exploring
areas of compromise and generating options in an attempt to solve the
dispute” See - Voluntary Court-Annexed Mediation Rules of the Magistrates’ Courts.
BENEFITS OF MEDIATION
• Speedy process
• Cost effective
• Maintaining relationships
• A win / win situation
• Focused on solutions and the future
• Constructive
• Confidential
• flexible
• Informal/non legal
• Step by step approach
• Confidential
 STAGES OF MEDIATION

• Opening stage

• Exploration (information) stage

• Negotiation/bargaining stage

• Settlement/closing stage
 Who May be a mediator?
•
Judge ( See Rule 9 (1) ( a) ( b) and (c)
• Registrar of Court
• Magistrate
• Accredited Mediator by Court see Rule 9
(1)
• Certified Mediator by CADRE (see Rule
9 (1) (e).
• A person with qualifications chosen by
the parties ( see Rule 9 (1)
 TOOLS OF A MEDIATOR IN MEDIATION SESSION:
• Reframing
• Listening
• Open ended questions, this helps to gather quality information,
they begin with who, when, where and how. For example; what
happened next at the board room meeting? Provides an
opportunity to obtain more abundant information than asking.
“Did anything else happen in the board room meeting?
• Closed ended questions, they tend shut down communication.
They tend to begin with is/ are or did/ do and tend to produce
monosyllabic answers, such as yes or no for example did you stop
beating your wife answer is no/ yes. If the witness answers no then
the impression is that the person continues to beat the wife, and if
he answers yes, it implies that he did beat his wife. According to
Paul Jones, asking closed ended questions is like watering a dry
plant one spoon at a time. You do not get far.
 TOOLS CONT..
• Speaking their language: conceptually using speaking in
pragmatic statements or usage of down to earth words, direct
vocabulary. The wording should match with the emotions of the
parties if you use words that show empathy, you will be better
understood and appreciated. Instead of saying last year you felt
betrayed, you would say “ the termination of job had had a
significant impact on your family,”
• Generating options:
Prior to the attending the meeting has options or your clients
may provide and the options the other side may come with. This
helps to assess those options in advance of the mediation session.
Whatever is said say that is an interesting suggestion, how about
modifying one aspect of it?. Then you set forth the modified option,
which you construed prior to the mediation session, hence shifting
the negotiation into a settlement .
 TOOLS CONT…

• Avoid costly Mistakes

Even when you understand the case, have anticipated the various
participants’ motivations and generated potential options, costly
negotiations mistakes can still occur. Prepare for negotiations traps,
to avoid mistakes. For example an advocate comes into a session
states that “ I do not want to rush any one, my flight leaves at 2:00
pm. The positive way to counter such rush is to t say “ we are sorry
to hear that you may not be able to complete the entire mediation,
would you prefer to designate someone who can fill in for you, or
shall we schedule a second meeting date now, just in case we do
not finish in time you need to leave?
 TOOLS CONT…
• The Phantom Focal Point technique:
Say “so glad you remembered to bring such an important
factor. It would be unfortunate if you had forgotten it”.
Avoid questions of why, they place the people on the
psychological defensive.
Remember when a mother would ask you why did you eat the
cookie just after the dinner? You went defensive.
• Ground rules
• Impartial
• Mediation caucus
DEALING WITH DIFFICULTY BEHAVIOUR, MAGIC OF MEDIATION:

Snakes are sneaks making sure everything comes out

into open

Lions want to fight.

They get angry. Let them say they are angry.
Repeat what they feel without the blaming words.
Remind them of the ground rules. Have cooling off time.
Get a teacher if you do not feel happy

Mice are very quiet.

Give them a chances to speak
MAGIC OF MEDIATION CONT..
Monkeys joke and mess around.
Remind them of the group rules or ground rules
Use an I statement to tell them how you feel about them
messing around.
Warn them they will lose the chance to mediate if they carry
on messing around

Elephants block the way.

Ask their ideas for solving the problem.

Owls think there very clever.

 BRIDGING THE GAP BETWEEN LAWYERS AND MEDIATORS:

The most common concerns that Attorneys have about

mediators:
• Mediators will take clients and business from lawyers
• Mediators who are not lawyers are not competent to mediate
disputes involving legal issues
• Mediators who are judges or lawyers want to play the role of
judges and make lawyers look bad in front the clients
• Mediators are waste of money and time, all they want to do is
get everyone to get in touch with their feelings, hold hands, and
sing kumbaya
• Mediation is the handmaiden of tort reform
 BRIDGING THE GAP BETWEEN LAWYERS AND MEDIATORS CONT…

Among Concerns that Mediators have about attorneys are:

• Lawyers want to put mediators especially mediators who are not lawyers out
of business.
• All lawyers care about billable hours instead of helping clients achieve the
best outcome possible in the client’s interest, not the lawyers
• Lawyers are adversarial than inquisitorial, lawyers will make any bad dispute
worse, destroying relationships and dissipating assets.
• Lawyers lack vision; th only outcome they can see binary (win/lose, white,
good/ bad.
• Litigation is an un necessary evil
 GUIDING PRINCIPLES OF MEDIATION
1. Voluntariness
2. Self-Determination
3. Impartiality
4. Confidentiality
5. Without Prejudice
6. Conflict of Interest
7. Settlement Authority
8. Informed consent
9. Duty to third parties
10. Honesty
11. Competence
12. Neutrality
13. Do no Harm
 1. Voluntariness
• Parties participate out of free will
• People will cooperate more fully if they know they are free to leave
at any point.
2. Self-determination
• Party autonomy
• encouraging the parties in a mediation to make their own decisions
(both individually and collectively)
• Party should not dominate the other party in the mediation.
3. Impartiality.
• Being even-handed, objective and fair towards the Parties e.g
• equitable time allocation,
• avoiding a display of favoritism,
• bias, or
• use of adversarial language directed towards one party.
 4. Confidentiality
• Since mediation is a concern of the parties, the information
shared therein should remain between mediator or Parties.
The parties knowing that the process is confidential enables
them speak freely without fear.
Exceptions:,
• unless agreed to by the parties, or
• required by law, or
• Is already in public domain.
5. Without Prejudice.
• No information obtained in mediation can be used against the
Party after mediation has been closed.
• Such information cant be used in court proceedings.
 6. Conflict of interest
• Mediators should avoid serving in cases where they have a direct or
indirect personal, professional or financial interest in the outcome of the
dispute.
• Where there is a potential conflict of interest, mediators should disclose
his or her interest.
7. Settlement Authority
• People in the mediation must have the authority to settle the matter in
dispute.
8. Informed Consent.
• Parties are entitled to all the necessary information, data or alternatives
before making a decision in mediation
• Its the duty of the mediator to inform the Parties about their right to self-
determination
 9. Duties to third parties
What to consider
• What is the effect of the settlement on third parties who are not parties to
the settlement?
Consider
Children, elderly, disabled or vulnerable people.

10. Honesty
• There must be full and fair disclosure of all materials and or documents
to be relied upon during mediation.
• Mediator must disclose his competence to the parties.
• Mediator must not disclose a parties to any person outside the dispute
settlement.
 11. Competence
• Mediators have a duty to know the limits of their ability; to
avoid taking on assignments they are not equipped to handle;
and
• to communicate candidly with the parties about their
background and experience. Sometimes the parties want a
mediator with subject matter expertise
12. Neutrality
• mediator should not have any interest in the outcome of the
dispute;
• Should not have any prior knowledge of the dispute;
• does not know the Parties; or, had any previous association with
them.
 13. Do no harm

• Mediators must avoid conducting the process in a

manner that harms the participants or worsens the
dispute.
• Be careful when dealing with emotions, anger and
psychological problems
• Avoid fuelling or inflaming Parties’ resentments.
 COST EFFECT OF MEDIATION.

Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004]
EWCA Civ 576.
The court set out various criteria for a judge to consider when deciding whether
there should be an exception to the general rule that costs should follow the
event. The burden is on the unsuccessful party in the litigation to show that the
successful party has been unreasonable in refusing to agree to ADR.
The Criteria set out in Halsey as referred to above as follows.
• The nature of the dispute
• The merits of the respective parties cases
• The extent to which ADR has been attempted
• Whether the costs of ADR would be disproportionately High.
• Whether there has been any delay in setting up and attending the ADR and
whether this has prejudiced the prospects of settlement
 COST EFFECT (CONT).
• In Uganda, Parties cannot be compelled to use ADR procedure such as
mediation to resolve their disputes yet for around two decades now a pro-
ADR approach has become an integral part of our litigation culture, the Civil
Procedure Rules and the Justice Platt Report 1994 all promoting the use of
ADR whenever appropriate. The courts have encouraged parties to use ADR,
particularly mediation and the courts have imposed sanctions thus not
awarding costs at trial to parties that they consider have unreasonably
refused to engage in the process of mediation.
• In English Courts, “No defence,however strong, by itself justifies a failure to
engage in any kind of ADR”. The Courts have continued to demonstrate that
it will not simply pay lip service to the Civil Procedure Rules that require a
party to consider and engage with ADR. A Party that fails to engage with
ADR runs the risk of an adverse costs order being made against it,
irrespective of the perceived strength of its case, and indemnity costs order.
See:Omv Petrom SA V Glencore International [2017] EWCA Civ 195,
BXB V Watch Tower and Bible Tract of Pennsylavannia and Anor [2020]
EWHC656 and DSN V Blckpool Football Club Ltd [2020],wales v CBRE
Managed Services Ltd Anor [2020]EWHC 1050
 MEDIATION AND ITS EFFECTS ON THE AWARD OF COSTS TO PARTIES. (
CLASSICAL CASES FOR ILLUSTRATION
CASE TOPIC KEY FINDINGS

Hurst v Leeming Exception to the  If one party offers mediation and the other party
[2001] EWHC 1051 general costs refuses it, the party refusing mediation has to have
(Ch), [2003] 1 sanctions rule good and sufficient reasons for doing so,
Lloyd’s Rep 379 otherwise may be penalized in costs
Chancery Division  Although mediation is not necessary, dispute
Lightman J [This resolution is at the heart of the justice system;
case went to the Where a party refuses such a resolution, it is
Court of Appeal, reasonably possible that there will be adverse
but not on this costs consequences
issue]  A party can refuse mediation where, on an
objective view, it has no reasonable prospect of
success, However, refusal is a high-risk to take; if
the court finds that there was s real prospect, the
party refusing may be severely penalized
 In this case, the defendant reasonably took the
view that by reason of the character and attitude
of the claimant, mediation had no prospect of
getting anywhere
Dunnett v Railtrack Costs sanctions, if  When the court asked the defendants why they were
plc [2002] EWCA party fails to not willing to contemplate ADR, they said it was
Civ 303, (Practice accept offer to because this would necessarily involve the payment of
money, which they were willing to contemplate, over
Note) [2001] 1 mediate
and above what had already been offered. This was a
WLR 2434 Court of misunderstanding of the purpose of ADR
Appeal Brooke,  Skilled mediators can achieve results satisfactory to
Robert Walker and both parties in many cases which are quite beyond the
Sedley LJJ power of the courts to achieve
 A mediator may be able to provide solutions which
are beyond the powers of the court to provide
 If a party turns down the chance of ADR, when
suggested by the court, they may face uncomfortable
costs consequences
 It was not appropriate to take into account the offers
that had been made, given the defendants’ refusal to
contemplate ADR
 The encouragement and facilitating of ADR by the
court is an aspect of active case management, which in
turn is an aspect of achieving the overriding objective
under CPR. The parties have a duty to further that
objective and to consider seriously the possibility of
ADR procedures
Societe Conduct of the  The Part 20 defendant was wholly successful in
Internationale de parties before the case and in normal circumstances would
Telecommunicatio and during receive an order for its assessed costs, to be
ns Aeronautiqutes proceedings paid by the main defendant. However, the Part
SC v Wyatt Co 20 defendant had on three occasions before the
(UK) Ltd and case came to trial declined to participate in
others (Maxwell mediation: should he therefore be denied some
Batley (a firm), pt or all of his costs by this refusal.
20 defendant)  It would be a grave injustice to deprive the Part
[2002] EWHC 2401 20 defendant of any part of their costs on the
(Ch) Chancery ground that they declined the defendant’s self-
Division Park J serving demands.
McCook v Lobo Exception to the  Before the Appeal hearing, the defendant’s
and others [2002] general costs solicitors wrote to the solicitors of the first
EWCA Civ 1760, sanctions rule and second defendants suggesting
[2003] ICR 89 mediation. The solicitors did not reply.
Court of Appeal They should have done so as a matter of
Pill, Judge and courtesy and because of the risk of
Hale LJJ having to explain to the court why they
had not considered mediation
 In this case, however, mediation would
have had no realistic prospect of success
and therefore there was no reason to
deprive the defendants of any of their
costs.
Leicester Withdrawal  The whole point of having mediation –
Circuits Ltd v from and, once you have agreed to it,
Coates Brothers mediation : proceedings with it- is that the most
Plc [2003] bearing on costs difficult of problems can sometimes,
EWCA Civ 333 indeed often are, resolved.
Court of Appeal  It hardly lies on the mouths of those who
Judge and have agreed to mediation to assert that it
Longmore LJJ had no realistic prospect of success
and Sir Swinton  The unexplained withdrawal from an
Thomas agreed mediation was of significance to the
continuation of the litigation. While it
could not be assumed that mediation
would be successful, there was certainly a
prospect that it would have done if it had
been allowed to proceed: that therefore
bears on the issue of costs
Hasley v Milton Guidelines for costs  It is one thing to encourage parties to agree to
Keynes General NHS when mediation mediation, even to encourage them in the strongest
Trust; Steel v Joy and refused terms. It is another to order them to do so. To oblige
another [2004] EWCA truly unwilling parties to refer their disputes to
Civ 576, [2004] 1 WLR mediation would be to impose an unacceptable
3002 obstruction on the right of access to the court
Court of Appeal  The key to Ad’s effectiveness is that these processes are
Ward, Laws and voluntarily entered into by the parties
Dyson LJJ  If the court were to compel parties to enter into
mediation to which they objected, that would achieve
nothing except to add to the costs to be borne by the
parties, possibly postpone the time when court
determines the dispute and damage the perceived
effectiveness of the ADR process
 In deciding whether to deprive the successful party of
some or all of the 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. The burden is on the
unsuccessful party to show why there should be a
departure from the general rule. It would need to show
that the other party acted unreasonably in refusing to
agree to ADR.
Allen and another v Conduct and  Where there was no issue of conduct and no
Jones and another proportionality as question of proportionality and where the court
[2004] EWHC 1189 determining had not itself either ordered or suggested that
(QB) factors in assessing mediation should take place, the mere failure to
Queen’s Bench costs submit to a request by the unsuccessful party for
Division mediation, in a case as such as this, ought not as
Benard Livesey QC a matter of principle of itself result in the
sitting as a Deputy successful party being deprived of his
High Court Judge entitlement to the usual order for costs
 It was difficult to understand why the successful
party should be penalized in costs simply
because he had not exposed himself to the
pressure of direct arguments from the opposite
sides which the judge had by his judgment
concluded to be incorrect
 Failure to agree mediation was a relevant factor
and any failure should be given such weight as
in all the circumstances of the case was
appropriate; but to elevate it to the level of a
predominant factor ran the risk of fettering the
court’s discretion
Reed Executive Plc No disclosure of  The court couldn’t order disclosure of ‘without
and another v Reed ‘without prejudice’ negotiations against the wishes of
Business prejudice’ one of the parties to the negotiations: Halsey
Information Ltd communications, considered that the rule in Walker v Wilsher
and others [2004] in order to was still good law
EWCA Civ 887; determine whether  In some cases, when it came to the question of
[2004] 1 WLR 3026 the party was costs, the court would not be able to decide
Court of Appeal unreasonable in whether one side or the other had been
Auld, Rix and rejecting ADR unreasonable in refusing mediation
Jacob LJJ  Such conclusion was not disastrous or
damaging from the point of view of
encouraging ADR
 It was open to either party to make open offers
of ADR or offers that were ‘without prejudice
save as to costs’. The opposite party could
respond to such offers, either openly or in the
‘without prejudice save as to costs’ form.
 The reasonableness or otherwise of going to
ADR may be fairly and squarely debated
between the parties and, under the Calderbank
procedure, made available to the court but
only when it comes to consider costs
Re Midland Linen Part 36, ADR and  The court has a wide discretion under CPR Part
Services Ltd, costs 36. 11 (3) [costs consequences of a claimant’s
Chaudhry v Yap acceptance of offer from defendant] .In
and others [2005] exercising that discretion, it must endeavor to
EWHC 3308 (Ch) com e to a determination which is fair and just
Chancery Division in all circumstances. It must obviously pay
Leslie Kosmin QC regard to the circumstances in which the offer
sitting as a Deputy was made and accepted, i.e. late in the day, but
High Court Judge it is not disbarred from considering more
general matters such as willingness or otherwise
of the parties to resolve the dispute by mediation
or negotiation
 An unreasonable refusal to mediate or negotiate
is a factor that the court may take into account
when deciding whether a successful party
should be deprived of all or part of its costs
 There is no power in the court to order parties
who are unwilling to mediate to mediate
 In this case, there was no serious engagement in
the process of mediation to justify a finding in
accordance with Hasley that the practitioner
should in some way be deprived of his costs.
Wills v Wills & Co Reasonableness in  The factual circumstances overall in the case
Solicitors [2005] refusing were such that the application could not hope to
EWCA Civ 591 mediation discharge the burden on her of showing that the
Court of Appeal defendants acted unreasonably in refusing
Mance LJ mediation
 Although the court in Halsey had stated prior
encouragement by the court to mediate would,
where it existed, be a relevant factor, the court
did not believe that the court below had given
such encouragement; even if it had, it was
extremely weak and so informal that it had not
been recorded in the judge’s order.
 The defendants were entitled and bound to take
the view that they needed to know how the case
was put before considering mediation. Once
they knew, they were also entitled to take the
view they did, that the claimant’s application
was bound to fail
#Burchell v Bullard Reasonableness  Appeals against orders for costs are notoriously
and others prior to Halsey difficult to sustain. That is because the trial
[2005] EWCA Civ judge has a very wide discretion with the result
358, [2005] BLR that the court will only interfere with his
330 decision if he has exceeded the generous ambit
Court of Appeal within which there is usually much room for
Ward and Rix LJJ reasonable disagreement; or because (even more
unusually) he has erred in principle
Daniels v Metropolitan Principles on which  It is difficult to envisage circumstances where it would ever
Police Commissioner discretion to be be right to deprive a successful defendant of some or all of
[2005] All ER (D) 225 exercised its costs, where it had refused to accept a Part 36 offer
Court of Appeal  It would be entirely reasonable for a defendant, especially a
Ward and Dyson LJJ public body, to take the view that it would contest unfound
claims and wanted to take a stand; the court should be slow
to categorize such conduct as unreasonable and penalize the
party through the payment of costs if the litigation was
successful
 The court applied Halsey. The court must have regard to all
circumstances including; (i) the conduct of the parties; (ii)
whether a party has succeeded on part of its case; (iii) any
payment into court or admissible offer to settle made by a
party which is drawn to the court’s attention
 The conduct of the parties includes: (a) conduct before, as
well as during the proceedings, and in particular the extent
to which the parties followed any relevant PAP; (b) whether
it was reasonable for a party to raise, pursue or contest a
particular allegation or issue; (c) the manner in which a
party has pursued or defended his case or particular
allegation or issue; and (d) whether a claimant who
succeeded in his claim, in whole or in part, exaggerated his
claim.
Register of the One must judge  The statement in Halsey that the fact a party
Corby Group the decision to believes that he has a water tight case is no
Litigation v Corby refuse ADR at the justification for refusing mediation should be
Borough Council time that it was qualified. The fact that a party unreasonably
(Costs) [2009] under believes that his case is water tight is no
EWHC 2109 (TCC) consideration justification for refusing mediation; but the fact
TCC that a party reasonably believes that he has a
Akenhead J water tight case may well justify refusing to
mediate
 By reference to Hurst, did the defendant act
unreasonably in refusing mediation? The
defendant formed the view, based on the
claimant’s expert reports, that mediation would
be ‘highly unlikely to be productive in reaching
a conclusion’. Whilst hindsight shows that they
were wrong, one must judge the decision to
refuse ADR at the time that it was under
consideration. Given the defendant had
material evidence to support its stances on
every material aspect of the Group Litigation
issues and that the claimants were adopting a
‘scattergun approach’, it was not unreasonable
to form a view that mediation would not have
 LAW APPLICABLE TO MEDIATION.

Whilst certain cases are not capable of settlement and require a judicial
determination, a party to litigation should at all stages consider
whether it should engage in ADR with its counter party in order to
seek to resolve the dispute. If it elects not to do so, It will be required
to justify this to the court. See Thakkar v Patel [ 2017] Court of
Appeal. And DSN v Blackpool Football Club Ltd [2020]EWHC 670
(QB).
What are the laws or rules governing the different methods of
Alternative dispute resolution?
The Judicature Act Cap. 13.
This act provides for ADR under court’s direction. Sec 26 to 32 of the
Act provide for situations when matters can be referred to a special
referee. These provisions read together with Sec 41 of the Act which
stipulates for the functions of the committee give the origin of the
Judicature (Commercial Court Division) (Mediation) Rules, No. 55 of
2007.
 LAW APPLICABLE (CONT.)
The Civil Procedure Act (Cap 71) and the Civil Procedure Rules S.I 71-1
Order XII (12) of the CPR provides for scheduling Conference and ADR,
Rule 1 (1) thereof provides- “The Court shall hold a scheduling conference to
sort out points of agreement and disagreement, the possibility of mediation,
arbitration and any form of settlement.
Order 12 rule 2 highlights court’s emphasis on ADR, it states-
(i) Where parties do not reach an agreement under rule 1…. The court may,
if it is of the view that the case has a good potential for settlement, order
ADR before a member of the bar or the bench named by the court.
The provision has thus set pace for the procedure of having a scheduling
conference before hearing of any suit commences.
 LAW APPLICABLE (CONT.)

This is presently strictly adhered to though it is apparent that litigants follow

this procedure with the perspective of looking at it as a mandatory
process before hearing of cases in Court, rather than focusing on the use
of the scheduling conference as a means of possibly settling the case out
of Court. The latter perspective was the main reason for the establishment
of this provision within Uganda’s Civil Procedural Law.
The Land Act Cap 227
The origin of mediation as a mechanism in dispute resolution and
administration of justice can be better appreciated through the practice of
Land Law in Uganda.
This is the basis for the recognition of traditional mediators under the
Land Act.
Sections 88 and 89 of the Act provide for customary Dispute Settlement
and Mediation as well as the functions of the mediator.
 LAW APPLICABLE (CONT.)
Sec 88(1) provides:
“Nothing in this part shall be taken to prevent or hinder or limit the
exercise by traditional authorities of the functions of determining disputes
over customary tenure or acting as a mediator between persons who are in
dispute over any matters arising out of customary tenure”.
Justice Geoffrey Kiryabwire in his article; Mediation of Corporate
Governance Disputes through court annexed mediation- A case study from
Uganda:
“……… mediation as a dispute resolution mechanism is not all together
new in traditional Ugandan and African Society. There has for centuries
been a customary mediation mechanism, using elders as conciliators/
mediators in disputes using procedures acceptable to the local community
but which were as formal as those found in the courts”.
 LAW APPLICABLE (CONT.)
Section 89 of the Land Act provides guidance on the basis of which the selection and
functions of a mediator follow. It provides that the mediator should be acceptable by
all the parties: should be a person of high moral character and proven integrity: not
subject to the control of any of the parties: involve both parties in the mediation
process, and: should be guided by the principles of natural justice, general principles
of mediation and the desirability of assisting the parties to reconcile their differences.
The Judicature (Commercial Court Division) (Mediation) Rules, No.55/2007.
The rues generally stipulate to the effect that a party filing pleadings at the commercial
Court shall provide for the mediator(s) in the matter; a concise summary of the case
in dispute, and al documents to which the case summary refers and any others to
which the party may want to refer in the mediation. This has been adopted by all
courts in all divisions.
 PROBLEMS FACED IN MEDIATION.
• Non payment of mediators that in return affects their effectiveness.
• Need for trained personnel that understand the rules of mediation.
• Mediators assume powers of court and instead litigate during mediation.
• Conflict of interest that may lead to a compromise of the mediator
• Mediation procedures being voluntary, parties opt to leave the process to lawyers.
• Failure to distinguish between court assisted mediation and private mediation.
• Judicial officers disregard the requirement of mediation as they see the process like a
mini court.
• Fixation of parties mind, that they think no compromise can be reached at.
 CASES FOR CONSIDERATION
• Byamugisha v National Social Security Fund MC No. 25/27 and 28 OF 2011.
• George Lukanga and Others v Patrick David Kanakulya HCCS No. 42 of 2008.
The effects of ADR on costs are;
- 1. ADR takes short time hence reducing of the cost.
- 2. In ADR the parties can agree on who pays costs and also determines the
minimal costs to be paid.
- 3. In Most case under ADR there is an aspect of win win situation and in most
cases each party end paying or meeting their own costs compared the
adversarial system whereby the winner takes it all.
 IS MEDIATION BINDING
• The new mediation rules play a strong positive impact in the practice of mediation as
a form of dispute resolution because they add more weight to mediation agreements
through regulation. Once a dispute has been resolved through mediation the parties
sign an agreement which in essence is binding and enforceable as a contract.
• See Muhammad muhammad Al Hassan v Ibrahim Al Gasim HCCS No. 504 of
2005. Justice Geoffrey Kiryabwire.
A settlement agreement reached between disputing parties after an alternative dispute
resolution (ADR) mechanism such as mediation will be treated by the court as a
contract and will be set aside only for the same reasons as a contract would...”
 COURT-ANNEXED MEDIATION
• Can courts be seen to force parties into Mediation?
• Yes, Proponents for ADR push for forced media
• Rule 18 of the Mediation Rules provides for payment of costs by parties
that fail to attend mediation meetings
• Lord Justice Brooke in Dunnet vs Railtrack (2002) opined that“ parties
that turn down a suggestion of ADR by the court may face uncomfortable
consequences”
 Jon Lang, a practicing mediator argues that it is human nature to reject
any form of compulsion
 Commercial court mediation Rules, Rule 10 gives exemption from
mediation.
 OBJECTION TO MANDATORY MEDIATION:
• Under Rule 4(2), a party may raise objection to mandatory reference made
by the registrar, magistrate or authorized court officer.

• This objection is only limited to points of law. Under this Rule , this
objection may not be raised before a court accredited mediator, a mediator
accredited by CADRE or a mediator chosen by the parties. In such
instances the case will be referred to trail judge.

• See the case of Sudhir, Crane Bank v Bank of Uganda 2017, where
Justice Wangutise has referred the case to mediation before trial.
 LOCUS VISIT FOR MEDIATORS.
Under facilitative and evaluative mediation just like under land matters, the
Court at trial is obliged to Visit Locus after hearing evidence, in cases of
facilitative and evaluative mediation, the mediator in the bid to resolve
such a dispute may require the parties to visit locus and involve expert
determination such as survey reports, to establish the real matter in
contention.
For example the case of Medard Kiconco (Kiconco Medard V Hon.
Persis Namuganza & 148 Others (CONSOLIDATED CIVIL SUITS NO.
1036 OF 2018 & NO. 165 OF 2019) [2019] UGHCLD 56) since the case
was heard exparte and the Magistrate did not visit Locus, the defendants
therein suffered and many others that that were not party to the suit.
See; Bongole Geofrey and 4 others v Agnes Nakiwala Court of Appeal
Civil Appeal No. 0076/2015.
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ARBITRATION:
Definition of Arbitration is provided for under S.
2 of the Arbitration And Conciliation Act. Where
it provides its an agreement where by the parties
choose to refer current disputes or future
disputes to arbitration tribunal for settlement
See Francis Marketing pty Ltd v Virgin Atlantic
Airways Ltd, where Gleeson , at 165, held that
parties should refer cases to arbitration due to
the agreement to choose to settle their disputes.
An arbitration agreement maybe in form of a clause in the
agreement ( see S.3).
Appointment of arbitrators (s.14).
The parties under arbitration need to have equal treatment
( s.18).
Commencement (S.21)
Its is a private form of ADR where the parties chose a third
party called an arbitrator to act as an umpire in the arbitral
proceedings, called arbitrator. The arbitral tribunal is
equivalent to a court and has international recognition and
enforcement.
Arbitration is provided for under Judicature Act Cap 13 S. 26-
32.
Civil Procedure Order 12 and 47
Civil Procedure Act Cap 71
 JURISDICTION OF COURT IN ARBITRAL PROCEEDINGS
This principal is well laid out in section 7 the Civil procedure Act
in Bayet Farm Enterprises Ltd v Another, the issue of Res judicate
was submitted under S.6 of CPA to stay proceeding of arbitration.
However, it was rejected under S.11,which provides for
appointment of an arbitrator.
This principle was applied in East African Development Bank v
Ziwa where Justice Weng Okumu held that S.5 of the Arbitration
Act bar Court Proceeding, where there is an arbitration
agreement. Hence mandatory reference by Courts under S.5 (2).
Enforcement of parties intention to arbitrate
East African Development Bank Vs Horticulture Exporters , where
Justice Okum Weng, held that S.5 of the Arb Act bars Court
Intervention. See Oil Seeds (ug)Ltd v Uganda Devt Bank,
 JURISDICTION OF COURT IN ARBITRATION MATTERS

• S. 7 of the Civil Procedure Act, Cap 71 addresses court jurisdiction

as forming Res Judicta (C.f Bayeti Farm Enterprises Ltd % Anor
vs Transition Grant Services [CAD/ARB/No. 4 of 2009])

• Court has jurisdiction to interfere with Arbitrator’s award (Oil

seeds (Uganda)Ltd vs Uganda Development Bank[Supreme Court
Civil Appeal No 203 of 1995])

• S.34 of the Arbitration and Conciliation Act ensures respect and

adherence towards arbitration awards (Fulgensius Mungereza vs
Pricewatercoopers Africa Central [Court of Appeal Civil Appeal No
34 of 2001])
THEORIES IN SUPPORT OF ARBITRATION:

THE SEAT THEORY:

.The rationale of the seat theory is that all
arbitrations are rooted in a national law
which is law of the seat theory of the
arbitration. The arbitral tribunal is
empowered to carryout a quasi-judicial
function.
See Czarzinkow v Roth Schmidt & Co.
 THE THEORY OF KOMPETENZ-KOMPTENZ:
This theory is derived from the Germany Federal court
, which means that parties to Arbitration agreement
vest their power to the Arbitral Tribunal .
The principal of Kompetenz-komptenz is found for
example within the domestic law of England, France,
Switzerland and countries which have adopted the
UNCITRAL Model Law.
See Compangie De Navigation et Transports ( France) v
MCS Mediterranean Shipping Company SA
(Switzerland).
CONTRACTUAL THEORY

Parties to an Arbitration agreement perform

under a contractual law obligation. Lord
Diplock said “ Arbitration constitutes a self
contained contract collateral to the ship
building agreement”.
See Tullow Uganda operations Ltd and Tullow
Uganda V Uganda.
 JURISDICTION THEORY

This theory was developed in 1965, by Rubellin-

Devich. Courts in most jurisdictions were still
hostile to arbitration and fewer subject matters
were held to be arbitral, while institution
arbitration was being spread. There was no clear
demarcation between the tribunal and judicial
courts.
See ICSID Rule 43(1) Arbitration Rules
Macmillan Lj Heyman V Darwins Ltd (1942) AC
356
THE DOCTRINE OF SEPARABILITY
 The principles underlying the concept of
separability of arbitration agreement were
recently considered by the court of Appeal of
Barmuda in Sojuznefte export (SNE) V JOC
Oil Ltd.
Enforcement of an Award
• To enforce Kompetenz-Komptenz and Separability, See S.16 ,
16(b) of the Arbitration Act and Art.32 of the East African
Community.
• To enforce the Contractual Theory, See Shell ( Ug) v Apip (u)
Ltd where Justice Tsekooko, where he said that “ It’s now
trite law that where parties have voluntarily chosen by
agreement the forum for resolution of their disputes, no party
can seek for litigation” In this case, he referred to Home
Insurance v Mentor Insurance [1993] 3 ALLEr at 74 p78.
• See Fulgensius Mungereza v Price Water Coopers Africa CA
Civ APPL N 3 of 2004 for Complimentary Theory
 ADVANTAGES OF ARBITRATION:

Privacy/ Confidentiality in arbitral proceedings.

 The parties agreement will provide that all
disputes are to be confidential nature, even the
award. This is a common law established
principle by English jurisprudence.
 In Glidepath BV and others v John Thompson
and other, where the court in England under
S.9 of the Arbitration Act of UK 1996, refused
to allow any documents subject to arbitration
to accessed by a third party when he applied
 In Alishipping Corp v Shipyard Trogir, the Court held
that arbitration proceedings are confidential and all
materials produced were treated as confidential to
the parties’ and the arbitrator.
 Under International Camber of Commerce ( ICC),
Art.20 Arbitration is secret, a classic.
Limited Scope of Confidentiality in Arbitral
Proceedings:
The limitation of Confidentiality was set in the case of Ali
Shipping Corp v Shipyard Trogir, where the Court of
Appeal set exceptions to the rule include
 Disclosure made with the express or implied consent of
the parties who originally produced the document
 where there is an order of the Court to disclose
documents generated by the tribunal for the purpose of
later court action
 Where leave of court has been disclosed
 Disclosure when and the extent reasonably necessary
for the establishment or protection of an arbitration
party’s legal rights vis-à-vis a third party
 Disclosure for pubic interest
CASES IN SUPPORT OF DISCLOSURE OF CONFIDENTIAL
ARBITRAL DOCUMENTS:

 Hassneh Insurance Co of Israel and other v

Mew ( 1993) 2 Lloyd’s Rep 243.
 Electric and Gas Insurance Co of Zurich Ltd (
AEGIS) v European Reinsurance Co of Zurich.
• Esso v Australia Resource Ltd and others v
Plowman (1995) 128 ALR 39, the High Court
of Australia held that there is no bias of
confidential information. He argued that those
who want confidential protection should put it
in their arbitral arguments’.
 PARTY AUTONOMY

 Under Arbitration, the parties choose the law

governing arbitration called lex arbitri.
 see Fiona Trust and Holding Corporation v Privalov
[2008] 1 Lloyd’s Rep 254.
 See Farm Land v Global Exports Ltd [ 1991] HCB
72,where the court had to enforce the intentions of
the parties in Uganda.
 NEUTRALITY

 The parties are free to chose a forum that is

neutral for example a party may choose Kenya
instead of Uganda. This will provide different
nationalities
 COSTS CLAUSE

This will help apportionment of cost. Major institutions

authorize arbitrators to award costs against one of the
parties or to allocate the costs between the parties.
The rules define cost to include arbitral fees,
arbitration expenses, administrative costs expert fees.

No Court Intervention in Arbitral proceedings:

see s,9 of Uganda Arbitration Act
COST AND SPEED:

 Arbitration is cheaper than normal

litigation.
 There is a lot of back log in Uganda
Courts arbitration is a solution of
speedy process to match Art.126 (1) d
and Art.28 of the Uganda Constitution,
that Justice delayed is justice denied.
 ENFORCEABILITY OF AN AWARD

Arbitration decisions awards are equal to court

judgments, enforceable by courts. They’re
enforceable by domestic courts in Uganda under S.
47 of the Arbitration and Conciliation Act of Uganda.
Awards are also enforced in 126 countries greater
than local courts due to New York Convention under
Art.2 (11).
 DISADAVTANATAGES OF ARBITRATION

 Courts do intervene in arbitral proceedings see Art.

139, S. 27 of Uganda Arbitration
 The doctrine of party autonomy may taken over by
court autonomy since in arbitral proceedings the
lawyers may dominate the proceedings
 Confidentiality may taken over due to public interest
doctrine
 Given to its nature like choosing a different forum
may make too it expensive, as the new forum may
subject to air tickets, language barriers.
 In Uganda there is only one center, hence a
problem.
 Arbitration may be expensive hence not
allowing the poor to access that justice (Art.28
and 126)
 The Courts may intervene due to unlimited
jurisdiction of the High Court under Art 139.
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 RECONCILIATION

 This is another ADR mechanism aimed at bringing people together in

their communities for example LRA in Northern Uganda.
 It’s provided for under Arbitration and Conciliation Act Cap 4 Laws of
Uganda.
 Its is a process of healing, justice rather than revenge. This does not
deal with who is right or wrong, but merely regulates harm or damage
to parties concerned. This reduces negative attitudes and promotes
social cohesion. In order to unite people of Northern Uganda
Reconciliation was set under the umbrella Reconciliation
Stakeholders Conference in December 2004 in order to end the
conflict.
 Reconciliation is also seen after the Rwanda Genocide of 1994 in
Rwanda.
RECONCILIATION AND MEDIATION COMPARED
 The main difference between Conciliation and Mediation
in modern times has considerably narrowed to the extent
that the two can be referred to interchangeably. It
should be noted that the conciliator, takes active part in
in the process of settlement of the dispute itself, from
both sides. Inflammatory rhetoric and tension, open
channels of community and facilitates continued
negotiations.
 Conciliation is often common where parties appoint a
third party to be a reconciliatory but must be impartial,
that helps the parties to negotiate. In mediation the
mediator does not play the active role in the process
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 NEGOTIATION
• This is a verbal interaction involving two or more parties
who seek to reach a settlement over a conflict of interest
between them, and in which they seek to preserve their
interest, but to adjust their views and position in the joint
effort to achieve the settlement.
• This is common with Amnesty International, where they
have used negation to forgive UPDF and LRA in Uganda.
 Points of Negations are common in all ADR. A classic
example is the negotiation of buying a car at lower price,
after agreement between the seller and buyer that a car
will be sold.
CONT..
• Negation may be seen as a dialogue between tow or more
people or parties, intend to reach an understanding,
resolve point of difference, or gain advantage in outcome
of a dialogue, to produce an agreement upon courses of
action, to bargain for individual or collective advantage,
to design out comes of a dialogue, to produce an
agreement upon courses of action, to bargain for
individual or collective advantage, to design outcomes to a
point of difference or dispute.
 COLLABORATIVE LEGAL PRACTICE: AVOIDING
PROTRACTED LITIGATION THROUGH PEACE
MAKING.
Collaborative legal practice is a new concept that is yet to receive
appreciation in Ugandan judicial practice.
• It is a way of solving problems with lawyers assisting the
parties to understand each other’s perspective.
• Adversarial litigation is based on crafty and heartless shrewd
lawyer that attracts the most clients. This philosophy does not
auger well with the belief in collaborative legal practice which
is all about selflessness during the negotiation.
• Eg family and divorce disputes.
 CONCLUSION
• ADR such as mediation is a beneficial and potential way of solving disputes
(property, family, Public disputes), by exploring this option, a party will
improve its position of costs. The Court Should consider all the Principles
set out in Halsey v Milton Keynes General NHS Trust; Steel v Joy and
Halliday [2004] EWCA Civ 576; when making an informed decision.
Although a successful litigant will not be penalized by way of costs for failing
to suggest mediation, the [arties conduct during mediation and any refusal to
engage with ADR should face consequences with costs. This is especially the
case when the court has suggested that the matter is suitable for mediation such
encouragement will be ignored at the parties peril.
The Judicial officers and mediators should learn the different skills and types
of mediation which will enable them handle difficult behavior of parties
during mediation.
 READ MORE ON ADR AND PRACTICE
• Susan Blake, Julie Brown & Stuart Sime, A Practical Approach to Alternative
Dispute Resolution (5th edn , Oxford University Press ( 2016) at 86-89, 224-
229.
• The Uganda Christian University Law Review Vol 1 No 2 August 2009 at 87-
116
• Arinaitwe PW, Avoiding Protracted Litigation Through Peace making
• Nancy Yeend, Mediation 101 Understanding the Magic, May 2005
Cases:
• Baron v Bliss Services [ 2006] WLR 503039 EAT
• Burchaal v Bullard & others 2005 EWCA Civ 358
• Thames valley Power Ltd v Total Gas & Power Ltd [ 2006] 1 Lloyds Rep 441
• Cressman v Coys of Kensington ( Sales) 2004 EWCA Civ 133
• Hasley v Milton Keynes General NHS Trust [2004] 1 WLR 3002
• IDA v university of Southampton [2006] RPC 21
 I AM GRATEFUL.

A BAD ATTITUDE IS LIKE A FLAT TYRE IF YOU DO NOT CHANGE IT YOU

WILL NOT GO ANY WHERE

IF MY MIND CAN CONCEIVE IT AND MY HEART CAN BELIEVE IT THEN I

CAN ACHIEVE IT
WE MUST BECOME BIGGER THAN WE HAVE BEEN; MORE COURAGEOUS,
GREATER IN SPIRIT LARGER IN OUTLOOK, WE MUST BECOME
MEMBERS OF A NEW RACE, OVERCOMING PETTY PREJUDICES,
OWING OUR ULTIMATE ALLEGIANCE NOT TO NATIONS BUT TO OUR
FELLOW MEN AND WOEMN WITHIN THE HUMAN COMMUNITY.