Help to study ADR

1. By Ass.Prof.Dr.Capt Shadat Ssemakula
LLB, LPC, LLM (UK),Mphil,(wales) PHD ( UK)
( Secretary Uganda Law Deans Forum)
09/ JULY/2021
ADR IN UGANDA BY ASS.PROF.SHADAT S. MOHMED

2. INTRODUCTION:
WHAT IS 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,
This automatically means that parties to a dispute
who file a civil action in court, must first attempt
to settle to settle the dispute through mediation
before judge or a magistrate can hear it.

3. When there is a dispute, it warranties 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.

4. LEGAL FRAMEWORK OF MEDIATION
• Construction 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

5. • 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

6. 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
recajoled to mediate. The only exception to this rule is court –
annexed mediation which is mandatory as provided under Rule
4 of mediation Rule 2013.

7. 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.

8. 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

9. 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

10. BENEFITS OF MEDIATION
• Speedyprocess
• Cost effective
• Maintainingrelationships
• A win / win situation
• Focused on solutionsand the future
• Constructive
• Confidential
• flexible
• Informal/non legal
• Step by step approach
• Confidential

11. 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)
MEDIATION:

12. 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.

13. STAGES OF MEDIATION
• Opening stage
• Exploration (information) stage
• Negotiation/bargaining stage
• Settlement/closing stage

14. • 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)
Who May be a mediator?

15. 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.

16. 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.

17. 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?

18. TOOLS CONT…
• The PhantomFocal Point technique:
Say “so glad you remembered to bring such an important factor. It would be
unfortunateif 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

19. 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

20. 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.

21. BRIDGING THE GAP BETWEENLAWYERS 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

22. BRIDGING THE GAP BETWEEN LAWYERS AND MEDIATORS CONT…
Among Concerns that Mediators haveabout 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

23. 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

24. 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
• encouragingthe 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.

25. 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.

26. 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

27. 9. Dutiesto 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.

28. 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.

29. 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.

30. COST EFFECT OF MEDIATION.
Halseyv Milton KeynesGeneral 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 referredto 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

31. 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.

32. 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.

33. 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 schedulingConference 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.

34. 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 ProceduralLaw.
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 and Act. Sec
88 and 89 of the Act provide for customary Dispute Settlement and Mediation as
well as the functions of the mediator.

35. 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 customarytenure”.
Allow me borrow a leaf from 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”.

36. 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.

37. PROBLEMS FACED IN MEDIATION.
• Non payment of mediators that in return affects their effectiveness.
• Need for trained personnelthat understandthe rules of mediation.
• Mediators assumepowers of court and instead litigate during mediation.
• Conflict of interestthat may lead to a compromiseof 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 compromisecan be reached at.

38. 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.

39. 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...”

40. 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”
• N.B
 Jon Lang, a practising mediator argues that it is human nature to reject
any form of compulsion
 Commercial court mediation Rules, Rule 10 gives exemption from
mediation.

41. 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.

42. 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.

43. 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
encouragementwill 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 behaviour of parties during
mediation.

44. READ MORE ON MEDIATION AND PRACTICE
• Susan Blake,Julie Brown& Stuart Sime,A Practical Approachto Alternative Dispute
Resolution(5thedn , OxfordUniversityPress( 2016) at 86-89,224-229.
• The Uganda Christian University Law Review Vol 1 No 2 August 2009at 87-116
• Arinaitwe PW, Avoiding Protracted LitigationThroughPeace 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

45. I AM GRATEFUL.
Thank you