28

The High Court’s Commercial Division has developed a new system of  resolving disputes through mediation and this has helped the Court reduce case back log. The Court’s Registrar in charge of mediation Mr Henry Haduli, talked to Saturday Monitor’s Lominda Afedraru about the success they are registering. Below are excerpts:Most High Court divisions dispose off cases through  litigation but the Commercial Court conducts its affairs differently by dispensing justice mainly through mediation, how does this system work?

Mediation at the Commercial Court started as a private pilot project with the Centre for Arbitration and Dispute Resolution (CADER) in 2003. This was basically  intended  to reduce  case backlog and expedite the process of resolving disputes in our court system. We  encourage people to settle disputes through mediation before a judicial  officer. This has been quite successful because the parties don’t have to wait for  long  before their cases are settled.If judges are not involved in this  exercise, how are the agreements reached  through mediation enforced?

The Rules at the Commercial Court state that every matter filed in court must go for mediation and when this fails, the matter is then referred for hearing before a Judge.The Commercial Court come up with mediation rules of 2007 which provide that mediation shall be conducted by the registrar in charge of mediation, a qualified person recommended by CADER or a Judge of the Commercial Court.The rules further provided that every person who conducts mediation shall comply with the code of ethics applicable and enforced by his or her mediation institution and where mediation is unsuccessful before a judge, he shall cease to handle the matter.So  what is  involved in the process of mediation?

Mediation is the process by which a neutral person facilitates communication between parties involved in a dispute and assists them reach a mutually agreed resolution.What is required here is to allow the parties speak for themselves.  In mediation, the parties take ownership of the case because they do the negotiations and it puts the parties in control of their own case. The lawyers participate in the negotiations majorly to be consulted where necessary. With this system the mediator has to be a mutual person who looks at disputes objectively and manages the emotions of the parties.    

The mediator does not take decision but helps the parties to take their own decision. Here, both the poor and rich are treated equally and there are cases where one party has more authority over the other but it is the duty of the mediator to help the helpless speak at the same level with the party who assumes authority.It is now six years since the Commercial Court has been practising this system, what are the benefits of the system to a party who has come to seek redress in Court?

The mediation system has its positive sides which include  among others- that it is time saving for both  the litigant and the Court. It is less costly and it preserves the relationship between the parties since the matters are settled amicably. In mediation since parties take their own decision; there is no room for corruption.Apart from this system being operational in commercially-related disputes, where else can Courts apply mediation?

Mediation is useful in matters of land dispute although the High Court land division has never taken up the system. However , there are ongoing consultations to  ensure that mediation  is introduced the High Court Land division. Mediation would also be useful for family disputes especially where parties are fighting over property and children. Mediation exercise is done in camera  and that is why we don’t allow the press during the negotiations.This seems to be a unique method of dispensing justice  which requires special funding, who funds this exercise?

The programme is funded by the judiciary because it is part of the normal processes of adjudicating cases but where parties prefer to get independent mediators they  pay for the costs.You said the Commercial Court has since settled prominent cases involving lump sums of money through mediation, which are some of these cases?

Most cases filed by tax payers against Uganda Revenue Authority are settled through mediation.Cases involving  major banks here are beneficiaries of the mediation system . One  outstanding case was that of  Basajjabalaba against Uganda Development bank involving over Shs6 billion.We have attained 60 per cent disposal rate of cases through mediation and that is why we came up with the 2007 mediation rules which not only gives mandate to the registrar but even the judges  to help parties  resolve commercial disputes  through mediation. A  legal consultant in this area , Mr John Nabaer has also been hired to assist the registrar in mediating over the cases.What are some of the  challenges court has  experienced when implementing this system? 
In Uganda and Africa in general, most lawyers are trained to litigate cases and they cherish in arguing cases in open Court. 

But  because in mediation  the clients are left to speak and negotiate for themselves, the lawyers get frustrated. This has even led to some lawyers discouraging their clients from participating in mediation. At the Commercial Court which is a business-oriented court, most parties do not come for mediation since in most cases they are on business trips. Another serious challenge is that most businesses here are branches of multinational business where persons who take binding decisions are usually at the headquarters and therefore outside the country. With acknowledgement to the Sunday Monitor of Uganda

Posted in: Mediation News
Actions: E-mail | Permalink |