In this article, I make a case for settling a dispute at mediation level. I demonstrate the immense benefits offered by mediation over a formal court hearing before a judicial officer.
Usually, by the time one files a suit against the other, they are really out to prove a point. They are emotionally charged and therefore have very exaggerated and heightened expectations from court and are willing to follow through the entire court process to see that the culprit is penalized and brought to book. They look forward to seeing the other party sweat in the dock while their lawyer fires hot questions. However, in reality so many considerations affect the outcome of each case and therefore, there is no guarantee that one’s expectations will be wholly met. Accordingly, a party must do a cost benefit analysis at the earliest stage and participate in the mediation process with a willing spirit and an open mind. Sometimes, this may call for compromises to be made.
Mediation was first formally introduced as part of the court process in Uganda at the High Court Commercial Division through the Judicature (Commercial Court Division) (Mediation) Rules SI 32 of 2007 and was subsequently introduced to all other courts through the Judicature (Mediation) Rules SI 10 of 2013 which were made under Section 41 of the Judicature Act Cap 13.
Under the Rules, ‘Mediation’ refers to;
“the process by which a neutral third person facilitates communication between parties to a dispute and assists them in reaching a mutually agreed resolution of the dispute”
The Process is conducted by a “mediator” who according to the rules is a person eligible to conduct mediation and this could be; a Judge, a registrar, a magistrate, a person accredited as a mediator by the court, a person certified as a mediator by CADER; or a person with the relevant qualifications and experience in mediation and chosen by the parties. It must be noted that at this point, the mediator is not sitting in the capacity of an adjudicator but rather as an intermediary.
Settling a case at mediation has several benefits as I demonstrate below;
Mediation is by far the fastest way to settle a dispute. Going through a full trial is time consuming and demoralizing.
‘A suit in Uganda begins with filing allowing 21-35 days to effect service of summons. Fourteen days may elapse before it is fixed for mediation. How long the parties are given before commencement of mediation varies from Mediator to Mediator. Suffice to say that a month may go by before the 1st mediation sitting takes place. The Judicature (Mediation) Rules 2013 provide in Rule 7 that mediation be concluded in sixty to seventy days. If the matter does not settle, a month may go by for exchanging the Joint Scheduling memoranda, compiling and filing the Trial bundles, followed by witness statements, hearing date may then be fixed for two to three months ahead. By the time hearing starts, six to nine months will have gone by.” Justice Wangutsi David in the case of Sudhir Ruparelia & Anor v Crane Bank Ltd [In Receivership] (Misc. Application No. 320 of 2019.
By the time a case goes through a full trial, judgment and execution, so much time has gone by that sometimes one party or even the judge may die before then, a party that is a foreigner may have gone back to their home country making it harder to execute against them. In the end justice delayed is justice denied. The timeliness of justice cannot therefore be over emphasized.
Relatedly, court processes can be financially constraining. Cost include filing fees, expenses of lawyers, transport for witnesses, etc. Moreover, since costs are granted in the discretion of the judge, one may never be able to recover the expenses of the trial. In this case, time is money. When you settle at mediation, even if you ‘lose’ the case, usually, each party bears its own costs. Accordingly, you may not be condemned to costs.
Since the standard of proof is higher at a hearing, every party brings out all its cards and sometimes that involves dragging the other party’s dirty linen into public. This adds injury to insult and leaves little room for the parties to reconcile. At mediation, the process is not as combative as a normal court hearing. Accordingly, the parties are given a chance to rekindle their relationship. Somehow, at judgment it is clear that there is a winner and a loser whilst at mediation because it involves making compromises, everyone is a winner in one way or the other
As a rule of mediation, the proceedings are confidential. Accordingly, whatever is said stays with the parties and cannot be relied upon anywhere else. It can’t even be relied upon at the hearing if mediation fails. As a result, parties with information sensitive cases like banks or couples at divorce are encouraged to find ways of settling their issues at mediation. Otherwise, once you subject yourself to a full hearing, the record of proceedings forms party of the public record and can be accessed by anyone.
Many people are intimidated by the formalities and technicalities that form part of the normal court process. For example, many witnesses and even lawyers are startled by the dock, by the court set up and the many other rules that come with court proceedings yet these rules may have little to do with the actual substance of the dispute. At mediation, the setting is informal and the process is more conversational than accusatory. It is therefore a free environment and parties and their witness [where necessary] express themselves more freely and openly thus making it more conducive to attain justice.
Unlike at a hearing where the fate of the case is in the hands of the judicial officer, and parties speak through their lawyers, at mediation, the parties have actual control over the outcome. The mediator only guides but does not direct or order any party to do that which it is not willing to do. All decisions are reached upon the mutual consent of the parties. The result therefore is more predictable and negotiable unlike in a normal court process.
Despite its informal process, a decision reached at mediation is a court judgment and is as binding as judge made decision. In fact, for the fact that it is a consent judgement, it is more enforceable and binding since it cannot easily be varied unless there are exceptional circumstances like fraud, duress and coercion or mental incapacity that are proved by the aggrieved party.
In conclusion, owing to the above reasons, parties and their lawyers are encouraged to have a positive outlook to mediation. In any case, if there are any issues that remain unresolved, the court is not barred from entertaining a hearing for the remainder of the issues. A partial settlement can be reached at mediation.
Damalie Tibugwisa is a commercial law practitioner and is the founder and managing partner of M/s Tibugwisa and Co. Advocates. For comments and inquiries contact her at damalie@tadvocates.com or +256787461139 or for other services by the firm check the firm’s website on www.tadvocates.com