Why you should choose mediation over court to resolve disputes

A public court session

A public court session

In 2013, Uganda’s Judicature (Mediation) Rules 2013 (rules) were passed into law. 

The rules made it mandatory for civil matters such as land, family disputes, among others to first attempt mediation before being heard by the High court and subordinate courts. The scope of this article is Uganda. Therefore, the arguments in this article will be looking at the period starting from 1st February 2013 when The Judicature (Mediation) Rules 2013 were introduced in Uganda.

According to Rule 3 of The Judicature (Mediation) Rules 2013, mediation is the process through which someone who is neutral facilitates communication between conflicting parties to help them to reach an agreement.

Firstly, one should choose mediation to resolve their dispute because mediation is cheaper than litigation (settling a dispute in court). This is because mediation sessions are usually quicker and easier to prepare. According to Rule 8, mediation must be finished within sixty days after being started by a mediator.

Nevertheless, parties can agree to extend a mediation session for a period not exceeding ten days if there is a possibility of resolving a dispute. In addition, if parties choose a mediator, they can easily agree on when to have their mediation session. 

However, preparing a mediation session involves some costs. For example, paying the mediator, hiring a mediation venue, among others. Nonetheless, settling a dispute through litigation can take over eight years in Uganda's courts. 

In addition, the costs incurred paying lawyers to litigate over such a long period of time can hardly be compared to the amount spent on mediation. Mediation is not intended to deprive lawyers of litigation opportunities; however, it is an opportunity to help clients to solve their disagreements more efficiently. 

Secondly, one ought to consider mediation to resolve their dispute because mediation is confidential. As outlined by Rule 18(1) of The Judicature (mediation) rules 2013, information obtained through mediation is confidential unless disclosure is required by law, or if the parties give written permission to the mediator for their information to be disclosed. Nevertheless, parties can hardly keep the fact that they are taking part in a mediation confidential. 

However, resolving one’s dispute through litigation means that the public can access the details of one’s case as court hearings are usually open to the public. Consequently, the media can easily report about one’s case in accordance with the subjudice rules. In addition, once a court ruling is made, it is in the public domain. This can easily damage one's reputation or business.  

Therefore, companies or individuals can consider mediation to resolve their disputes especially in this social media era where one's reputation can be tarnished within no time.  

Thirdly, parties should consider mediation to resolve their disputes because it gives them an opportunity to control their settlement process as highlighted by Rule 16(1) of The Judicature (mediation) rules 2013. With the guidance of a mediator, clients can negotiate with each other favourable ways of resolving their disputes.

It could be argued that a client who is more knowledgeable about a particular field in which they are attempting to resolve a dispute can try taking advantage of the other.

However, one of the roles of a mediator is to ensure that there is fairness in the mediation process. In addition, since a mediator must be competent in the field in which they are mediating, they can easily identify an unfair offer and then ensure a balance of power between the parties.

On the other hand, at times clients feel disconnected to a litigation process where they have lawyers representing them. Lastly, one should choose mediation to resolve their dispute because it can be conducted online, thus favouring members of the diaspora, or people living far from a mediation venue. 

As mediation is party led, parties to a conflict can agree to conduct their mediation online. This is essential for people living in the diaspora or people living far away from an ideal mediation venue. 

For example, instead of buying a flight ticket or paying lawyers to litigate a case in court, a Ugandan living in the diaspora can choose to use online mediation to help resolve a land or family dispute with the people in their home country. 

However, natives who are involved in land or family disputes might not be familiar with online mediation. Besides, the cost of the internet in Uganda and the general connectivity challenges might hinder the conducting of a successful mediation.

Schedule 2, 3(3) of The Judicature (mediation) rules 2013, states that a mediator needs to ensure that there is balance of power during a mediation. Therefore, mediators can assist parties who cannot use online mediation to be able to do so. 

Besides, the future of mediation will be influenced by Artificial Intelligence (AI). This can be used where parties agree to resolve their dispute with the assistance of AI. For example, Smartsettle ONE, a Canadian dispute resolution tool (robot mediator) helped to settle a three-month dispute that involved around £2000 in less than an hour. 

This writer would recommend conflicting parties with civil matters to reach out to different mediation organisations in Uganda such as the Arbitration and Mediation Society of Uganda (AMSU), The International Centre for Arbitration & Mediation in Kampala (ICAMEK), among others to get trained mediators to help them to resolve their disputes.



This article was co-authored by Kato Mpanga, UK academic lawyer and Wyclef Kayonjo, lead, innovations and client strategy at Fine Media Uganda

© 2016 Observer Media Ltd