Lawyers should encourage mediation in conflict resolution

By Emilian Kayima

While launching the roll out of the Alternative Dispute Resolution mechanism (ADR) in Kampala recently, Principal Judge, Justice Dr. Yorokamu Bamwine coined this term, “Judicial Terrorism”. 

He used humour to explain it; showing how most of those that go to the temples of justice eventually become “terrorised” by the same system that is meant to give them justice and protection. He left our jaws hurting after a long laughter!

When people disagree on various issues, a conflict is born; there is usually an aggressor and a victim of aggression. There is unfair treatment and this is injustice. The aggressor is usually powerful, influential, and vocal; sometimes he or she has knowledge that the victim doesn’t have.

On the other hand, the victim is weak, at a loss and is bound to suffer further acts of aggression, if no stern punitive action is taken to call the aggressor to order. The victim of aggression lives in fear. She or he often has self-esteem issues, believes in stereotypes that further weaken him or her. She or he is often led to offices and someone offers to speak for them thereby disempowering them further, adding insult to injury!

It is such aggression that sparks off Police intervention and court battles in search of justice. Criminal justice punishes crime and civil justice provides remedies that are not provided for in the criminal justice system.

Largely, many people do not appreciate the difference! That is why many of those who report land related cases want the Police to finish these cases by asking the other party to behave and respect certain positions that were abused in the transaction process. Some of these cases are purely civil in nature. Police handles criminal justice. We cannot criminalise civil matters! With empathy though, we listen and guide our clients appropriately.

At length, we discuss best intervention mechanisms that include mediation and reconciliation without imposing our values and subjective views which we hold as individuals. We actually encourage and practice mediation even when majority of us are not yet trained as mediators.

Each day of the week, we handle many court orders ranging from interim orders that halt certain activities on disputed property, vacant possession or eviction orders and demolition orders and indeed other orders of court. These orders impose certain painful sanctions and they must be respected to the letter. After court has heard all parties to the suit, judgment is delivered. The consequences that follow are sometimes life threatening and that is justice.

There is a winner and a loser and the winner takes it all while the loser loses more than the matter in court. Some lose property as they are evicted; property demolished and has to pay damages. They do not lose the property alone; some lose families as wives or husbands divorce them and some lose life as they commit suicide in anger and shame.

That is why the judiciary came up with mediation and made it mandatory. Out of this mediation process, you get a consent judgment which is legally binding to all parties.

This is a win-win situation. It is a cheaper and less confrontational process. There is no absolute winner and no absolute loser. Forgiveness is possible, rehabilitation of relations is equally possible, trust is built, and hope of living together in peace and harmony are all possible outcomes. Former foes can be friends again and the world takes a leap forward.

In all this, truth must be sought and told to form the basis for mediation. We must look for the common good without compromise. And to use the words of Justice Yorokamu Bamwine, we will then avoid “judicial terrorism”.

The author is a police officer in Uganda

Email: kaemilian05@yahoo.com