Here is the article as it was published in the New Vision last Tuesday (even though the date for the online version says Monday). Let me know what you think of this version compared to my original and if you see any real difference.
Also, here is the link: http://www.newvision.co.ug/D/8/459/707437?highlight&q=napier
It is better to settle cases out of court
Monday, 18th January, 2010
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
Thursday, 21 January 2010
Wednesday, 20 January 2010
My Article - Take 1
As I mentioned, I had an article published in one of the local papers here. The New Vision is the government owned paper, and as I sent this to both the Vision and the Daily Monitor (basically, the opposition paper), the Vision published it first. As far as I know, it could get published in the Monitor as well, but who knows. It is the continuing effort to educate the general public on what mediation is and why it is beneficial, i.e., the continuation of the so-called informal "media campaign."
The transcript of the article as I wrote it is below. Take a look, it is a quick read. Then I will post the article as it was published in the Vision and you tell me what you think of the difference. I am very interested to see what any of you have to think. And no, this is not a ploy to get you to read my article more than once for exposure. There are some marked differences and it would be good to get some objective feedback.
The article as I wrote it:
BY JOHN M. NAPIER
MEDIATION CAN HELP ACHIEVE QUICKEST JUSTICE AND SATISFACTION
Ever since entering Uganda, I have heard a consistent complaint about the slow pace of litigation and cries of justice. This begs the question: what is the most efficient method for resolving disputes? I submit that the best method is the Alternative Dispute Resolution (ADR) practice of Mediation, which can not only reduce delays and case loads in the courts, but bring about a more satisfying and just conclusion to disputes.
Where once the Commercial Court had 100 cases filed per year, now that many cases can be filed in a month, with only a few judges to help adjudicate. Yet, the Commercial Court has employed ADR, requiring each case to go into mediation before going into court. The process is simple. Both parties come before the mediator, a neutral third party, and tell him/her the circumstances of the case. Then, the mediator begins asking questions while everyone begins looking for collaborative solutions to the issue. This alternative to litigation is the best opportunity for clients to exercise control over the outcome of the dispute, because the parties themselves come to the agreement. The mediator is positioned to help the parties reach resolution by exploring creative options and facilitating negotiation of a mutually beneficial outcome. Moreover, there is little to no room for corruption because the mediator is not allowed to make the parties come to an agreement; he/she is there to help them reach agreement themselves. A resolution comes in the form of a consent judgment, which has the same force as a judge’s ruling, with the advantage that it cannot be appealed. If mediation does not resolve the case, the case is issued back into court.
This alternative offers the best option for parties to be satisfied with the outcome. It is wonderful to see two parties that have been in litigation for many years go into mediation and, in a matter of hours, walk out with an agreement and shaking hands. While binding arbitration also has its place in ADR, mediation has the advantage of producing both process satisfaction and outcome satisfaction. Not only that, mediation is far less expensive than a courtroom solution. Every time parties mediate, there is an opportunity for a win-win scenario.
The Ugandan Constitution of 1995, under Section III of the National Directives and Objectives of State Policy, declares that courts “establish and nurture institutions and procedures for the resolution of conflicts fairly and peacefully.” Uganda’s Civil Procedure Rules, Order XII mandate scheduling conferences in all civil proceedings, and dictate that parties must consider mediation, arbitration and any form of settlement. The underlying foundation of ADR lies within Uganda’s legal framework.
Unfortunately, many see mediation as a weakness, or try to frustrate the process. But in the end, even defeating the other party at trial does not mean the clients come out better. The great American President and Emancipator, 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, most satisfying and most definite form of justice available today. Hopefully, it will be expanded throughout every District and corner of Uganda.
The writer is an Accredited Mediator with the Commercial Court.
*All photos are copyright John M. Napier unless otherwise indicated.*
The transcript of the article as I wrote it is below. Take a look, it is a quick read. Then I will post the article as it was published in the Vision and you tell me what you think of the difference. I am very interested to see what any of you have to think. And no, this is not a ploy to get you to read my article more than once for exposure. There are some marked differences and it would be good to get some objective feedback.
The article as I wrote it:
BY JOHN M. NAPIER
MEDIATION CAN HELP ACHIEVE QUICKEST JUSTICE AND SATISFACTION
Ever since entering Uganda, I have heard a consistent complaint about the slow pace of litigation and cries of justice. This begs the question: what is the most efficient method for resolving disputes? I submit that the best method is the Alternative Dispute Resolution (ADR) practice of Mediation, which can not only reduce delays and case loads in the courts, but bring about a more satisfying and just conclusion to disputes.
Where once the Commercial Court had 100 cases filed per year, now that many cases can be filed in a month, with only a few judges to help adjudicate. Yet, the Commercial Court has employed ADR, requiring each case to go into mediation before going into court. The process is simple. Both parties come before the mediator, a neutral third party, and tell him/her the circumstances of the case. Then, the mediator begins asking questions while everyone begins looking for collaborative solutions to the issue. This alternative to litigation is the best opportunity for clients to exercise control over the outcome of the dispute, because the parties themselves come to the agreement. The mediator is positioned to help the parties reach resolution by exploring creative options and facilitating negotiation of a mutually beneficial outcome. Moreover, there is little to no room for corruption because the mediator is not allowed to make the parties come to an agreement; he/she is there to help them reach agreement themselves. A resolution comes in the form of a consent judgment, which has the same force as a judge’s ruling, with the advantage that it cannot be appealed. If mediation does not resolve the case, the case is issued back into court.
This alternative offers the best option for parties to be satisfied with the outcome. It is wonderful to see two parties that have been in litigation for many years go into mediation and, in a matter of hours, walk out with an agreement and shaking hands. While binding arbitration also has its place in ADR, mediation has the advantage of producing both process satisfaction and outcome satisfaction. Not only that, mediation is far less expensive than a courtroom solution. Every time parties mediate, there is an opportunity for a win-win scenario.
The Ugandan Constitution of 1995, under Section III of the National Directives and Objectives of State Policy, declares that courts “establish and nurture institutions and procedures for the resolution of conflicts fairly and peacefully.” Uganda’s Civil Procedure Rules, Order XII mandate scheduling conferences in all civil proceedings, and dictate that parties must consider mediation, arbitration and any form of settlement. The underlying foundation of ADR lies within Uganda’s legal framework.
Unfortunately, many see mediation as a weakness, or try to frustrate the process. But in the end, even defeating the other party at trial does not mean the clients come out better. The great American President and Emancipator, 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, most satisfying and most definite form of justice available today. Hopefully, it will be expanded throughout every District and corner of Uganda.
The writer is an Accredited Mediator with the Commercial Court.
*All photos are copyright John M. Napier unless otherwise indicated.*
From the Abyss. . .
. . .of silence.
Been far too long since I published anything, but with the holidays and everything else happening, this did not happen. But here I am, safe and sound, in Kampala. An interesting development has happened in the new year that is worth sharing:
**I am now the only full time mediator in the Commercial Court.**
My colleague and formidable (in ability, not presence) ally in the Commercial Court, Registrar of Mediation Henry Hadouli, has been transferred to become a level 1 Magistrate in the eastern region of Uganda. What is a level 1 Magistrate? Why was he transferred, leaving only one mediator? What are you going to do? All good questions. No good answers at this time. There is another mediator in the court working part time, but she is looking for other employment and planning to be gone by end of January. They have replaced Henry with another Registrar, that I hear is supposed to mediate, but to my understanding does not have any experience mediating and will have to go and get trained before starting to practice. So, it's go time. I am a bit nervous about being the only one here full time, but by this time if I am not ready to go then I never will be. In short, I am ready to go. I certainly hope they can get someone up to speed and in place before I leave in August. The Commercial Court is already down to only three judges and they need mediation to help stem the tide of cases and reduce the back log.
Another aspect of mediation is that our statistics came out and they are dismal, as reported. There is a 5% success rate on mediation in the Commercial Court, according to the annual report. The biggest problem with this number is that it got published to the judiciary. We know for a fact it is not correct, but the problem is the record keeping on mediations has not been very good, so there is no way to know how much higher the real statistics are. Justice Kiryabwire is hot on the topic now and is all for making whatever changes need to be made now, especially as we are in a transition time. Including allowing us/me to start sanctioning lawyers for not showing up (hallelujah) and working to streamline the process. Justice K (our affectionate--and more easily-pronounceable--name for him) is meeting with the other Commercial Court judges on Friday to discuss the next steps.
Sounds like a new and busy day in terms of mediation. There is more to follow. I had an article published in the New Vision yesterday that I will post for you all as well. In fact, I want to do a little experiment with it, but more on that in a little bit.
Hope you all are well and living in peace. More soon. . .
Been far too long since I published anything, but with the holidays and everything else happening, this did not happen. But here I am, safe and sound, in Kampala. An interesting development has happened in the new year that is worth sharing:
**I am now the only full time mediator in the Commercial Court.**
My colleague and formidable (in ability, not presence) ally in the Commercial Court, Registrar of Mediation Henry Hadouli, has been transferred to become a level 1 Magistrate in the eastern region of Uganda. What is a level 1 Magistrate? Why was he transferred, leaving only one mediator? What are you going to do? All good questions. No good answers at this time. There is another mediator in the court working part time, but she is looking for other employment and planning to be gone by end of January. They have replaced Henry with another Registrar, that I hear is supposed to mediate, but to my understanding does not have any experience mediating and will have to go and get trained before starting to practice. So, it's go time. I am a bit nervous about being the only one here full time, but by this time if I am not ready to go then I never will be. In short, I am ready to go. I certainly hope they can get someone up to speed and in place before I leave in August. The Commercial Court is already down to only three judges and they need mediation to help stem the tide of cases and reduce the back log.
Another aspect of mediation is that our statistics came out and they are dismal, as reported. There is a 5% success rate on mediation in the Commercial Court, according to the annual report. The biggest problem with this number is that it got published to the judiciary. We know for a fact it is not correct, but the problem is the record keeping on mediations has not been very good, so there is no way to know how much higher the real statistics are. Justice Kiryabwire is hot on the topic now and is all for making whatever changes need to be made now, especially as we are in a transition time. Including allowing us/me to start sanctioning lawyers for not showing up (hallelujah) and working to streamline the process. Justice K (our affectionate--and more easily-pronounceable--name for him) is meeting with the other Commercial Court judges on Friday to discuss the next steps.
Sounds like a new and busy day in terms of mediation. There is more to follow. I had an article published in the New Vision yesterday that I will post for you all as well. In fact, I want to do a little experiment with it, but more on that in a little bit.
Hope you all are well and living in peace. More soon. . .
Subscribe to:
Posts (Atom)
