Kakooza Conrad A.

, Arbitration & Conciliation: A Focus on the UgandanPractical Aspects,

A paper presented to the Post Graduate Bar Course Studentsat Law Development Centre on
10th January, 2007 at a Training on AlternativeDispute Resolution, organized by the L.D.C Legal
Aid Clinic.

ALTERNATIVE DISPUTE RESOLUTION

(Professional Ethics in Alternative Dispute Resolution in Uganda)

Definition; the term “alternative dispute resolution’’ or “ADR’’ describes a wide range of
dispute resolution mechanisms that are short of, or alternative to, full–scale court proceedings.
The primary forms of ADR are negotiation, mediation and arbitration. Other emergent forms of
ADR include collaborative law and conciliation.

Advantages/ Purpose of Alternative Dispute Resolution

In many instances formal litigation is not the best option for resolving disputes. ADR can
provide parties to a dispute with mechanisms for reaching resolutions more quickly, amicably,
efficiently, cost-effectively, and less arbitrarily.

ADR is considered particularly beneficial where disputing parties have an interest in maintaining
an ongoing relationship, where there are shared interests that can be realized with a
collaboratively designed outcome, or when the parties do not have the time or resources to
pursue formal litigation.

ADR occurs as a matter of necessity among the larger percentage of Ugandans who are unable
to afford access to the formal justice system. Many individuals utilise informal negotiation
methods and communitybased mediation though tribal or religious leaders to resolve disputes.

Alternative Dispute Resolution in Uganda

The 1995 Constitution of the Republic of Uganda establishes a general policy framework for the
promotion and establishment of alternative dispute resolution. Article 126 (2) (e) provides that
in adjudicating cases of a civil and criminal nature, the courts should promote reconciliation.

ALTERNATIVE DISPUTE RESOLUTION IN UGANDA

The 1995 Constitution of the Republic of Uganda establishes ageneral policy framework for the
promotion and establishment ofalternative dispute resolution. Article 126 (2) (e) provides that
inadjudicating cases of a civil and criminal nature, the courts should promote reconciliation.
In the case of Buildtrust Construction (U) Ltd vs. Martha Rugasira HCT-00-CC-CS-288-2005:
Justice Kiryabirwe expounded on this Constitutional mandate that;
Court has a duty under Article 126(2) (e) of the Constitution of the Republic of Uganda
1995 to see that reconciliation between parties should be promoted. In effect this in my view
means that if parties use alternative dispute mechanisms, like in this case a reputable third
party expert, to resolve their dispute then court will promote that reconciliation by giving effect
to it unless there is good reason not to do so.

The increasing significance and relevance of ADR is exemplified in the high profile arbitration
between Heritage Oil and the Ugandan Revenue Authority.

Legal Framework for Alternative Dispute Resolution in Uganda

In Uganda, formal litigation remains the dominant form of dispute resolution for those who can
afford to engage in the process. However,the rising prominence of ADR can be seen in various
contexts.

The delivery of formal ADR services in Uganda is administered bythe Centre for Arbitration and
Dispute Resolution (CADER). CADER isa statutory institution established under the Arbitration
and Conciliation Act charged with the responsibility of providing ADR services.

Theinstitution makes available to individuals and their legal counsel, at nocharge, pre-drafted
model arbitration and mediation clauses for inclusionin their contracts.

Order XII of the Civil Procedure Rulesrequire courts to hold schedulingconferences where the
possibility of settlement is explored, and the courtmay order the parties to participate in a form
of alternative disputeresolution under the court’s direction.

Under the Judicature (Commercial Court Division) Mediation Rules No. 55/ 2007, the
Commercial Court provides for litigants to enter into a goodfaith mediation process as a matter
of course prior to proceeding to thetrial phase.

Under the statutory framework establishing andregulating the local council courts, labour
disputes and land disputes, the principles of reconciliation and dispute resolution areexpressly
incorporated.

FORMS AND CATEGORIES OF ALTERNATIVE DISPUTE RESOLUTION

As noted above, the primary forms of ADR are negotiation,mediation and arbitration. In
addition, new forms of ADR are increasingin use and prominence. These forms include the use
of collaborative lawand conciliation. Each of these forms of ADR will be introduced
anddescribed in more detail below.

NEGOTIATION

Negotiation is communication aimed at reaching an agreement. Negotiation is by far the most

common form of Alternative Dispute Resolution.

MEDIATION

Mediation is the formal process whereby dispute resolution isfacilitated by an independent

third party known as a mediator. Mediationgives both sides of a dispute the opportunity to
communicate theirconcerns and contentions directly to one another in a civilised format.

hemediator has no power to force the parties to take any action againsttheir will. The
mediation process is largely about creating anenvironment that facilitates dispute resolution.

Roles/ Functions of the mediator.

The mediator’s function is to:

I. Facilitate processes whereby opposing parties communicate substantively.

II. Identify common interests in the issues between the parties.
III. Clarify issues of dispute and contention between the parties.
IV. Consider available options between the parties.
V. Reach fair and equitable resolutions of disputesbetween the parties.

Qualities of a good Mediator:

I. The mediator must garner the confidence of the disputing parties.
II. The parties need to believe that the mediator be able to treat the parties neutrally,
fairly, discretely, honorably and without bias.
III. Mediators should be skilled in the art of cutting through the posturing and
gamesmanship endemic to litigation. Due to the premium placed on this particular
quality, mediators are often retired judges or experienced litigators that are skilled in
getting to the heart of disputes.

Challenges that Face the Ugandan Mediators

Helping the parties understand mediation, there is still a lack of understanding about the
nature and purpose of mediation that must first be addressed by the mediator before the
mediation process can move forward and about mediation are producing fruit where
themediator must close this knowledge gap.

However, recent efforts in Uganda to sensitize the public at large and the legal community
about mediation are producing fruit where themediator must close this knowledge gap.