Training, Lectures, and Students. . .Oh My!

Things have gotten much busier. The last few weeks have been a blur of activity, and thankfully, productivity. The overall disposition towards mediation continues to pick up and gain more and more acceptance. Things are coming to fruition more quickly. Much of the current progress is attributable to the placement of a new Registrar, John Arutu, who is organizing and facilitating mediation in the Commercial Court to an extent heretofor unseen, on an administrative level. That has been a huge help. He is also gone through training to become the third active mediator currently practicing in the Commercial Court. The other is my counterpart from South Africa, Ms. Nox Ntuli. She is an excellent lawyer and mediator who has been in the court since late last year, but has been developing the new training materials for training mediators, as well as taking on a full mediation docket. I will try and get a good picture of the three of us together and post it.

As I was mentioning, the disposition towards mediation is starting to turn towards the positive. Last Thursday the 13th we held a very large, half-day event in a local hotel. With 70+ CEO's, MD's (Managing Directors), and other Executives, Judges, Law School Administrators, and Court Staff, Justice Kiryabwire and I both gave presentations on the advantages, challenges, and background of mediation, along with the role that the court users play. The event was very well-attended, by both participants and press. I had my first television interview. Unfortunately, I did not get to see it, but others said they saw me. We were honored to have the Honorable Principal Judge Ogoola (3rd Highest Judge in Uganda) open the workshop and the Honorable Chief Justice Odoki (Highest Judge in Uganda) close the workshop. The entire event was giant success, with many of the heads of Uganda's biggest companies (banks, telecom, construction) attending and getting acquainted with why mediation is should be taken seriously and a good faith participation is to their advantage.

Now, with May quickly coming to a close, I will be receiving ten law students from Pepperdine this weekend--and the snowball just keeps getting bigger. It will be great to have the students here, and I get the privilege of orienting them, as Justice Kiryabwire is in Paris sitting on a UN Appeals Board for a few weeks.

Next month will bring more trainings, adventures with the students, the World Cup (I am getting to attend, thankfully), and more mediation. Hopefully you all won't resent me too much for not having posted in three weeks, but wanted to give you and update and give you the tree top of the past and coming months. Will post more as soon as I can.

Peace to you all.

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.*

Start of the Media Campaign

Below is a copy of a recent article/interview that was done with the Assistant Registrar for mediation in the Commercial Court, His Worship Henry Haduli. This is all part of a growing media campaign to make people in Uganda more aware of mediation and its benefits. As more of these articles and media outlets cover mediation here in Uganda, I will post them for you to see.



Daily Monitor
News | November 7, 2009

Commercial Court starts mediation

Lominda Afedraru

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.

In such a case we would require teleconferencing facilities which we do not have now. Mr Haduli. PHOTO BY L. AFEDRARU

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 practicing 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.

*All photos are copyright John M. Napier unless otherwise indicated.*