STREAM A [GROUP A];

JURISPRUDENCE II

ALTERNATIVE DISPUTE RESOLUTION

1. TURIHO DANITA AS21B11/230

2. ASHABA PRIMAS AS21B11/107

3. EGESSA HILGA AS21B11/129

4. DOGO STEFANAS LESLIE AS21B11/039

5. ANCHO KWEMBOI ISAAC AS21B11/222

6. EMIRIAT JAMES AS21B11/

7. AFOYOWORTH JUDITH NATALINE AS21B11/

ALTERNATIVE DISPUTE RESOLUTION

Alternative dispute resolution (ADR), refers to several methods of resolving legal disputes
outside the courtroom. Civil courts in Uganda encourage the use of court settlements to litigate
parties at any time before a judgment is awarded by the court. Once parties opt to arbitrate or
settle disputes through ADR, the court may halt proceedings to enable parties to examine their
options.

"Peace cannot be kept by force, it can only be achieved by understanding."

-Albert Einstein

There are ideally four methods of alternative dispute resolution. It should be noted that all these
methods, though designed to achieve the same goal, are different. These methods are;

a. Negotiation

This is where parties meet to settle a dispute without a third party. Negotiations give parties the
chance to take the wheel and control the process coming to a resolution all on their own. It is
quite informal and this leaves room for flexibility as litigating parties conclude.

b. Mediation

This form of ADR is controlled by a mediator. A mediator is an individual who has been trained
to handle negotiations to help opposing parties work out a settlement that both parties can agree
to. Mediation however leaves room for parties to also reject said agreement making this form of
dispute resolution informal as well.

c. Arbitration

Arbitration is formal negotiation and it is quite similar to a court proceeding with less dramatics.
The arbitration proceedings are decided on by an arbitral panel or a single arbitrator depending
on the agreement of the parties. Arbitration hearings take a few days, the panel will deliberate,
after which issue a written binding decision called an arbitral award.

d. Conciliation

In this process, parties to a dispute use a conciliator whose aim is to meet each party separately
and then together make an attempt to resolve their differences. Conciliation however has no legal
standing, and the conciliator is under no obligation to write a decision or seek evidence in the
matter. In such a hearing, parties are required to independently create a list of their desired
outcomes from conciliation. The conciliator will then go back and forth encouraging each party
to give their objectives one at a time.
In Uganda, the Civil Procedure Rules under Order12, Rule 2 provides for Alternative Dispute
Resolution, and the Judicature (Mediation) Rules of 2013 made mediation compulsory in all civil
matters.

Advantages of ADR.

i) Parties have autonomy over their matters. ADR is private, this means that parties have the
opportunity to control the outcome of their dispute coming to a conclusion that will leave both
parties satisfied.

ii) It is cheap. While court proceedings can take years to come to an end, ADR doesn’t have that
mishap. If parties are unable to agree they are allowed to pursue a resolution from a trial. ADR is
cheaper, especially because it’s quicker.

iii) ADR proceedings are more private than a trial. When a court session is in progress, it is hard
to limit the audience. ADR on the other hand emphasises the privacy of the parties and their
discussions, resolutions are kept confidential.

Disadvantages/challenges of ADR
i. Lack of expertise as the arbitrator may not have legal knowledge
ii. There’s no system of precedent
iii. Enforcement may also be difficult in terms of remedies and rules
iv. Parties can’t appeal since the decision given to them is legally binding .
v. There’s Bias as one of the leading persons may favor one party against the other party
vi. There are challenges of Bribery and corruption.
vii. Parties don’t actively participate in the process of the different types of ADR.

ARBITRATION;

When a resolution is unsuccessful, any of the parties can arbitrate a dispute. During arbitration, a
neutral arbitrator or panel presides over the hearing

Arbitration is procedure where by parties in a dispute, refer the issue to a third party for the
resolution and agree to be bound by the result of the decision instead of taking the Case to the
ordinary Courts of Law. The third party is a neutral intermediary trained in the techniques of
ADR. It’s been vital in solving commercial disputes internationally. Arbitration has been
recognized by the courts and it’s governed by
Statutes, which empowers arbitrators and regulates the process.

Arbitration has six stages which include

i. Initial pleadings

ii. panel pleadings

 iii. scheduling

iv. discovery

v. trial preparation

vi. Final hearing

LEGISLATIVE PROVISIONS ON ARBITRATION:

The Judicature Act, Cap. 13

This Act provides for Alternative dispute resolution under Court’s direction

Sections 26 to 32 of the act provide for situations when matters can be referred to a special
referee or arbitrator to handle where such official have been granted High Court powers to
inquire and report on any cause or matter other than a criminal proceeding. These provisions read
together with Section 41 of the Act which stipulates for the functions of the rules committee
given the origin of the judicature.

The Civil Procedure Act Cap 71, Order 12 provides for scheduling conference and alternative
dispute resolution. It states that;

1. Alternative Dispute Resolution before any member of Court in cases where parties do not
reach agreement.

2. Completion within 21 DAYS after date of order, though it could be extended for not more
than 15days

3. The Chief Justice may issue directions for better carrying into effect of arbitration

Also Order XLVII 47 provides that where the parties in a suit agree that the matter be referred
to arbitration, they may at any time apply to a COURT for arbitration before a judgment is
pronounced

Rule 2 of Order 47 provides for the manner in which the arbitrator should be appointed in a
manner agreed by the parties

The Arbitration and Reconciliation Act Cap. 4

Regulates on procedure and operation of arbitration as well as behavior of conciliator in conduct

of such procedure.

Provides for CADER center for arbitration and dispute resolution as service provider

CASE LAW PROVISIONS

In circumstances where a course has been commenced in court and it is established that the
matter was meant for arbitration. Court will respect that and order that case to be referred for
arbitration as held in the Case of East African Development Bank V Ziwa Horticulture
Exporters Ltd to the effect that, “Sec. 6 (present sec. 5) of the Arbitration and Conciliation
Act, provides for mandatory reference to arbitration of matters before court which are subject to
an arbitration agreement; where court is satisfied that the arbitration agreement is valid,
operative and capable of being performed, it may exercise it’s discretion and refer the matter to
arbitration.”

The most important thing to note is that Courts follow the intention of the parties. In Farmland
Industries Ltd v. Global Exports Ltd it was held that, “It was the duty of Courts in
arbitration proceedings to carry out the intention of the parties . . . the intention of the
parties was that before going for expensive and long procedures of arbitration, the parties
had to first negotiate a settlement failing which they could resort to arbitration.”

However, in order to satisfy court that the case before it should be referred to arbitration, certain
conditions must be present as was spelt out by Tsekooko S.C.J in Shell (U) Ltd vs Agip (U)
Ltd.

These are:

 There is a valid agreement to have the dispute concerned settled by arbitration.

 Proceedings in Court have been commenced.
 The proceedings have been commenced by a party to the agreement against another party
to the agreement.
 The proceedings are in respect of a dispute so agreed to be referred.
 The application to stay is made by a party to the proceedings.
 The application is made after appearance by that party, and before he has delivered any
pleadings or taken any other step in the proceedings.
 The party applying for stay was and is ready and willing to do all the things necessary for
the proper conduct of the arbitration.

ADVANTAGES OF ARBITRATION
a. Privacy ; Arbitration tends to be a private procedure. This has the two fold advantage
that outsiders do not get access to any potentially sensitive information and the parties to
the arbitration do not run the risk of any damaging publicity arising out of the
proceedings. This confidentiality can boost the possibility of the warring parties
maintaining a business and friendly relationship after the dispute is resolved, which is
hardly the case in litigation.
b. Informality; The Proceedings are less formal than a court case and they can be
scheduled more flexibly than court proceedings. As such, they can be ad hoc and are
 tailored around the dispute involved unlike disputes brought before Court for litigation
which have to fit within the legal procedures provided.

c. Speed ; Arbitration is generally much quicker than taking a case through the courts.
Where, however, one of the parties makes use of the available grounds to challenge an
arbitration award, the prior costs of the arbitration will have been largely wasted.

d. Costs; It is generally a much cheaper procedure than taking a case to the normal courts.
Nonetheless, the costs of arbitration and the use of specialist arbitrators should not be
underestimated.

e. Expertise- The use of a specialist arbitrator ensures that the person deciding the case has
expert knowledge of the actual practice within the area under consideration and can form
their conclusions in line with accepted practice, e.g Accountants in disputes in debts;
Engineers for construction disputes, etc. Furthermore, the person arbitrating over the
matter has his full focus on this particular dispute as opposed to litigation where a judge
has a number of matters to focus upon in one day.

f. Enforcement - Considering that an arbitral award is enforced as a decree of Court, the

party aggrieved by it can exercise the option of appealing as one would appeal against a
Court Decree. However, an arbitration award is taken to be a more binding and
enforceable decision than other forms of ADR.

DISADVANTAGES OF ARBITRATON;

a. Arbitration can, in some instances be time consuming and ultimately expensive;

Arbitrators have fewer powers than the courts to obtain evidence from the parties and
to expedite the proceedings; they may also lack necessary legal knowledge,
ultimately necessitating an appeal, which will inevitability increase the costs.

b. Commercial arbitration procedures are also not necessarily appropriate unless the
contracting parties are in a position of equal bargaining power.

c. Because of the laxity involved in arbitration, the element of mutual respect of the
arbitration process can sometimes be lacking as opposed to litigation where the
disputing parties are obliged by law to respect court procedure inclusive of attending
hearings. Such as Cases handled exparte the respondents.

In practice, Arbitration basically stands out as the preferred choice in International

Commercial disputes as opposed to domestic commercial disputes because it is more
expensive to resolve International commercial disputes through domestic Courts of law.

CONCILLIATION;
Conciliation, an integral aspect of Alternative Dispute Resolution, is governed by the provisions
of the Arbitration and Conciliation Act. The primary role of a Conciliator is to facilitate the
parties involved in a dispute in reaching a mutually acceptable solution, but unlike an arbitrator,
a Conciliator lacks the authority to enforce any decision or outcome. The relatively limited
documentation and study of Conciliation as an ADR method can be attributed to its private
nature. In Conciliation, the parties themselves independently and impartially arrive at a
resolution, adhering to the principles set forth in Section 53 of the Act, which emphasize
objectivity, fairness, and justice. These principles take into account the rights and obligations of
the parties, trade usages, and the circumstances surrounding the dispute, including past business
practices between the parties.

Consequently, the entire focus of Conciliation proceedings centers on the interests of the
disputing parties, their customary trade practices, if applicable, and the specific circumstances of
the dispute. Part V of the Act delineates the steps involved in Conciliation proceedings:

a. The party initiating the proceedings sends a written invitation for Conciliation to the
other party, which only proceeds if the other party accepts within 21 days.

b. Similar to arbitration, the parties appoint a Conciliator.

c. Each party submits a concise written statement describing the general nature of the
dispute and the key issues.

d. As settlement options emerge during the proceedings, the Conciliator assists the parties in
drafting a settlement agreement, which is signed by the parties, thereby concluding the
proceedings.

e. The settlement agreement holds the same status as an arbitral award under the Act.

Meetings between the Conciliator and the parties maintain an informal character. They can occur
in person at a mutually agreed location or through oral or written communication. The
Conciliator is not obliged to meet with the parties together; separate meetings are possible. As in
mediation, suggestions for dispute settlement are often proposed by the disputing parties
themselves, but the Conciliator can help formulate settlement terms when the parties have agreed
on fundamental points.

Conciliation shares several significant similarities with arbitration. Notably, the settlement
agreement reached in Conciliation carries the same legal standing and effect as an arbitral award
under the Act. Furthermore, the autonomy displayed in arbitral processes is mirrored in
Conciliation proceedings.

Section 62 of the Act stipulates that during Conciliation proceedings, the same parties cannot
initiate either arbitral or judicial proceedings. This provision contributes to an organized and
effective process for resolving disputes on one front, preventing simultaneous legal actions.
Additionally, the outcomes of Conciliation proceedings cannot be used as evidence in any
subsequent arbitral or judicial proceedings, irrespective of whether they pertain to the same
dispute. These limitations on Conciliation proceedings discourage prolonged disputes in the
realm of ADR.

However, there are disadvantages to Conciliation:

a. Although it may lead to dispute resolution, it lacks binding power over the parties, and not all
Conciliation efforts result in a resolution.

a. MEDIATION;

Mediation is a process that involves the interaction of two or more parties, whether they are
disputants, negotiators, or individuals whose relationship could benefit from the intervention of a
mediator. Under various circumstances, these parties decide to seek the assistance of a third
party, who then determines whether mediation is appropriate. Once mediation begins, the third
party selects from various available approaches, influenced by factors such as the environment,
mediator's training, characteristics of the disputants, and the nature of the conflict. These chosen
approaches ultimately produce outcomes affecting the disputants, the mediator, and other parties
not directly involved in mediation.

In some Alternative Dispute Resolution categories, mediation is also referred to as negotiation.

The primary goal of mediation is to facilitate the disputing parties in reaching an agreement.
Importantly, the results of mediation are determined by the parties themselves, rather than being
imposed by a third party. While the Arbitration and Conciliation Act does not specifically
mention mediation, it has gained prominence in Uganda's Commercial Court as a preferred
method of Alternative Dispute Resolution.

The origins of mediation in Uganda can be traced back to the practice of land law. Traditionally,
elders played a crucial role in mediating land disputes, contrasting with Western-style tribunals
that were less appreciative of traditional dispute resolution methods and often exacerbated
conflicts. Sections 88 and 89 of the Land Act outline the provisions for Customary Dispute
Settlement and mediation, emphasizing the importance of combining customary practices with
modern mediation strategies, given that approximately 75% of land in Uganda falls under
customary tenure.

Section 88 (1) expressly allows traditional authorities to mediate disputes related to customary
tenure. This demonstrates that mediation as a dispute resolution mechanism is not entirely new in
Ugandan society and has historical roots in customary mediation mechanisms.

Section 89 of the Land Act provides guidelines for selecting and defining the role of a mediator.
A mediator should be acceptable to all parties, possess high moral character, maintain proven
integrity, not be under the control of any party, involve both parties in the mediation process, and
adhere to principles of natural justice, general mediation principles, and the goal of reconciling
differences.

The Judicature Act and the Judicature (Commercial Court Division) (Mediation) Rules play a
crucial role in promoting mediation. In cases where disputes are too complex to be resolved
through mediation or where parties are unable to communicate amicably, the Commercial Court
Division's Mediation Rules, which became operational in 2009, mandate mediation for all
litigants. Pleadings filed at the Commercial Court must include provisions for mediation, a
concise summary of the dispute, and all relevant documents, making mediation an integral part
of the litigation process.

These new Mediation Rules also strengthen the impact of mediation by regulating mediation
agreements. An agreement reached through mediation is considered binding and can be filed
with the court for endorsement as a consent judgment, bringing the proceedings to a close. If no
agreement is reached, the mediator informs the court that mediation was attempted but
unsuccessful.

While court-annexed mediation may appear to compel parties into mediation, it is seen as a way
to encourage the benefits of mediation, even when parties may initially resist. However, parties
can be exempted from mediation if they can demonstrate sufficient cause to the court, as per
Rule 10 of the Mediation Rules, which ensures that mediation is not forced upon unwilling
parties.

In conclusion, mediation has become a significant aspect of dispute resolution in Uganda,

particularly in land-related disputes, and is facilitated by both customary practices and modern
regulations. The use of mediation is promoted through court-annexed mediation rules, but parties
can seek exemptions in certain circumstances, striking a balance between encouraging mediation
and respecting the parties' autonomy.

DIFFERENCES BETWEEN MEDIATION AND CONCILLIATION;

Conciliation and mediation have similarities, but they actually are quite different. The key
difference is the role of a mediator and the role of a conciliator. In conciliation, the third party
involved in the discussion will give advice and make interventions, so as to support the parties to
settle their dispute. On the other hand, in mediation, a mediator will facilitate a constructive
conversation between two participants, with a view of coming to an agreement. Mediators may
make interventions, sometimes they might make suggestions, but they will never give advice. A
mediator is there to empower both participants to make their own decisions.

An obvious difference between a conciliator and a mediator is that in conciliation will try to
persuade you to reach an agreement based on their own evaluations. They will listen to your
discussions and make interventions they find appropriate. A mediator will facilitate the session
and encourage you both to have the conversation you choose to have. They will ask questions,
give you prompts, set an agenda. They will manage the conversation to keep it on track. Whilst
your mediator will not give you advice or make decisions, they will give you legal information
that you can use to help in your discussions.

In short, the key difference between mediation and conciliation is that your mediator will
facilitate a conversation, whilst a conciliator will intervene in a conversation to offer solutions.
The roles are intertwined. Mediation offers a power balance where decision making is in the
hands of the participants.