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It is better to settle cases out of court

By Vision Reporter

Added 18th January 2010 03:00 AM

BY JOHN M. NAPIER

Since I came to Uganda, I have heard consistent complaints about the slow pace of getting justice from our courts of law.

BY JOHN M. NAPIER

Since I came to Uganda, I have heard consistent complaints about the slow pace of getting justice from our courts of law.

This leads me to the question: What is the most efficient method of resolving disputes? I believe the best method is the Alternative Dispute Resolution (ADR) — a mediation practice. This practice does not only reduce delays and case loads in courts, but also quickly resolves disputes.

There is a time the Commercial Court could only handle 100 cases per year, but now many more are being filed every month, with only a few judges to adjudicate. This is so because the Commercial Court has employed dispute resolution, requiring each case to go into mediation before going to court. The process is simple. Both parties come before the mediator, a neutral third party and tell him or her the circumstances of the case.

The mediator is there to help the parties reach a resolution by exploring creative options and facilitating negotiations that benefit both parties.

Moreover, there is little or no room for corruption because the mediator is not allowed to make the agreement for the parties. He only facilitates talks between them.

A resolution of the dispute is called consent judgment. If mediation does not resolve the case, it is sent back to court. This alternative to court proceedings is the best opportunity for clients to exercise control over a dispute since the parties themselves come to an agreement.

The alternative offers the best option for parties to be satisfied with the outcome.

It is wonderful to see two parties that have been in court for many years, go into mediation and in a matter of hours, walk out with an agreement and shake hands.

While binding arbitration (a legal technique for the resolution of disputes outside the courts) also has its place in ADR, mediation has the advantage of giving all the parties involved satisfaction.

Mediation is far less expensive than a courtroom solution. Every time parties mediate, there is an opportunity for a win-win scenario.

Section III of the 1995 Constitution declares that courts should establish and nurture institutions and procedures for the resolution of conflicts fairly and peacefully.

Uganda’s civil procedure rules dictate that parties must consider resolving conflicts outside court, before proceeding to court.

The underlying foundation of ADR lies within Uganda’s legal framework. Unfortunately, many see mediation as a sign of weakness or try to frustrate the process.

But in the end, even defeating the other party at a court trial does not mean the clients come out better.

The great American president, Abraham Lincoln, said: “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expense and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be enough business.”

In rare exceptions, a case will fall outside the realm of mediation and the unique capability of the court is required.

Otherwise, resolution through mediation is the quickest and most satisfying form of justice available today.

Hopefully, it can be expanded to every corner of Uganda.

The writer is an accredited mediator with the Commercial Court

It is better to settle cases out of court

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