LAW DEVELOPMENT CENTRE

DEPARTMENT OF POST
GRADUATE LEGAL STUDIES
AND LEGAL AID

ALTERNATIVE DISPUTE
RESOLUTION

TRAINING MANUAL,2023
Table Of Contents
GENERAL INTRODUCTION........................................................................................................2
Subject Overview..................................................................................................................3
Course Justification..............................................................................................................3
Aim of the Course.................................................................................................................4
Course Objectives.................................................................................................................4
MODULE ONE: INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION.............................4
Introduction to ADR.............................................................................................................4
Some Key ADR Distinctions..................................................................................................5
Justification and benefits of Alternative Dispute Resolution..............................................8
Disadvantages of ADR..........................................................................................................9
Legislative provisions on Alternative Dispute Resolution:..................................................9
Drafting Alternative Resolution contractual clauses;........................................................13
Module Two: Negotiation, Mediation, Conciliation and Arbitration...................................15
METHOD 1: NEGOTIATION.................................................................................................23
Negotiating Principles and Techniques............................................................................25
Negotiation skills.............................................................................................................26
Importance of Negotiation Skills.....................................................................................26
STAGES OF A NEGOTIATIONS PROCESS...........................................................................27
Communication Tactics In Negotiations..........................................................................28
The Role of a Lawyer in Negotiations..............................................................................30
METHOD 2: MEDIATION.....................................................................................................31
WHEN AND HOW MEDIATION IS USED...........................................................................31
THE MEDIATOR................................................................................................................32
Principles Of Mediation...................................................................................................33
Procedure For Mediation.................................................................................................37
The role of a lawyer in mediation....................................................................................40
4. Preparing For The Mediation....................................................................................42

1
 METHOD 3: CONCILIATION................................................................................................44
Principles of Procedure....................................................................................................45
METHOD 5: ARBITRATION..................................................................................................46
Types of Arbitration.........................................................................................................47
The Process for arbitration..............................................................................................50
Advantages and disadvantages of Arbitration.................................................................51
Some of the disadvantages include.................................................................................51
Drafting Arbitration agreement.......................................................................................52
The Role of Lawyers In Arbitration;..................................................................................54
Module Three: Reconciliation, Plea Bargaining and Diversion............................................55
Introduction........................................................................................................................55
METHOD 1: RECONCILIATION............................................................................................56
Appointment of a Reconciliator.......................................................................................57
Commencement of Reconciliation Proceedings..............................................................57
Remedies under Reconciliation.......................................................................................58
Who may facilitate Reconciliation?.................................................................................58
Functions of a Reconciliator............................................................................................58
Method 2: Plea Bargaining.................................................................................................60
Background to plea bargaining........................................................................................60
Practice of Plea Bargaining..............................................................................................61
The Pros of Plea Bargaining.............................................................................................63
The Cons of Plea Bargaining............................................................................................63
Challenges of Plea Bargaining..........................................................................................63
Method 3: Diversion...........................................................................................................66
Definition.........................................................................................................................66
Background of Diversion..................................................................................................66
Who are fit persons?.......................................................................................................67
Policy and legal framework for the diversion program...................................................68
The rationale for Diversion..............................................................................................68
Benefits of diversion........................................................................................................69
Principles of diversion......................................................................................................69
Criteria used in diversion.................................................................................................69

2
 1. GENERAL INTRODUCTION.

This teaching manual is intended to act as a guide to students. It will act as a supplement
to the subject curriculum as well as the students’ independent research and learning.

1.1 Subject Overview

Alternative Dispute Resolution has been adopted has been introduced as a stand-alone
subject at the Bar course. The Course will equip student lawyers admitted for the Bar
Course with skills to embrace legal reforms and practices and meet market demands. The
Course will also position the student lawyers with the current international, regional, and
national trends in the administration of justice.

This Course provides instruction in basic theory and jurisprudence, as well as skills
training and experiential work. It focuses on instructing the law student in ADR in Civil
and Criminal law and provides a firm grounding in ADR theory and skills development
and creative problem solving in a wide variety of substantive settings.The Course is
divided into three parts;

a) Part one: Course introduction.

b) Part two: Module one that focuses on the general overview of ADR;

c) Part three: This part is further divided into two sessions. Session one is on types of
ADR with a focus on negotiation, mediation and arbitration (as part of civil justice)
and session two on types of ADR with a focus on reconciliation, plea bargain and
diversion (as part of criminal justice).

Since this is a wide subject area, focus will be in the areas of Negotiation, Conciliation,
Mediation, and Arbitration together with an emphasis on learning procedural aspects of
negotiation Mediation and Arbitration, as well as negotiation skills. These alternative
methods of dispute resolution (hereinafter collectively referred to as “ADR”) are mostly
in the area of civil justice. Though some aspects of ADR are breaking into criminal
justice as well. The course will in addition therefore focus on procedures like
reconciliation, plea bargain and diversion in the criminal justice system.

3
1.2 Course Justification
Alternative Dispute Resolution (ADR) has grown in interest as a critical avenue for
resolution of disputes. Law Development Centre has established practices and various
ways in which legal disputes and transactions are handled, managed or resolved without
having to go to court. ADR is not new and has always existed as a form of dispute
resolution in communities and societies. ADR is recognized in the Ugandan juridical
system and is increasingly being recommended in Courts as a fast-track dispute
resolution mechanism and the students need therefore to learn how to use these
alternatives to litigation.

The Judiciary has in the recent past adopted the Alternative Dispute Resolution Strategy
as a tool to embrace dispute resolution as opposed to adjudication. Ministry of Justice
has also launched the National ADR Policy.

1.3 Aim of the Course

The aim of the Course is to;

a) Develop ability to advise on the different alternative dispute resolutions mechanisms;

b) Develop ability to apply various ADR mechanisms in dispute resolution;

c) Recognise ethical issues in relating to alternative dispute resolution mechanisms.

1.4 Course Objectives

By the end of the course the students should be able to;

a) Describe the various Alternative Dispute Resolution Mechanisms ;

b) Apply alternative dispute resolution mechanisms to the resolution of both civil and
criminal disputes;

c) Draft documents relating to alternative dispute resolution;

d) Recognise and deal with ethical issues relating to the application of the Alternative
Dispute Resolution (ADR) mechanisms.

4
 2. MODULE ONE: INTRODUCTION TO ALTERNATIVE DISPUTE
RESOLUTION

2.1 Introduction to ADR

ADR is a generic term used to describe a range of procedures designed to provide

alternative ways to resolving a dispute when compared to court procedures otherwise
referred to as adjudication. ADR methods, in comparison with court litigation, have
various advantages though ADR also has disadvantages in certain situations. In this
session the definition of ADR, understanding of the different ADR mechanisms, its
historical development, its comparative advantages and disadvantages will be dealt with.

The existence of an effective dispute resolution system is at the core an efficient

domestic as well as international legal system. The aim of devising mechanisms to afford
effective dispute resolution is to ensure that disputes are solved as soon as possible and
cheaply through effective and efficient means for the benefits of the disputants and the
society in general.

In order to do this, States and the international community have come up with alternative
ways of resolving disputes rather than insisting on the traditional way of resolving
dispute through the courts. Litigation can in certain situations be costly, ineffective, and
inefficient. These ADR mechanisms have got wide acceptance to resolving disputes due
to their perceived advantages. Even court officials, who used to consider ADR as ousting
the jurisdiction of the court, now recognize the need of ADR as a choice to settle
disputes. Pre-trial conference and compulsory (court ordered) mediation under Order 12
of the Civil Procedure Rules are an indication for this.

2.2 Definition

Alternative Dispute Resolution is a structured negotiation process whereby the parties to

a dispute themselves negotiate their own settlement with the help of an independent
intermediary who is neutral and trained in the techniques of Alternative Dispute
Resolution.

For the purpose of this manual, it seems more useful to think of ADR not as alternative
dispute resolution, but appropriate dispute resolution. It is designed to be non-
confrontational, flexible, inexpensive, and effective. Avoiding litigation is an alternative
to litigation as it affords greater accessibility to justice and caters for greater client
participation.

5
 Mediation and other ADR methods are not alternatives to the formal justice system in
the sense that they aim to replace it. Their goal is to complement the scope of court
procedures so that the parties can choose between these processes. However, this choice
does not have to be exclusive. In many cases, parties may choose mediation along with
litigation or arbitration and conduct them in parallel, until they settle, withdraw, or get a
court decision or arbitration award. Moreover, litigation is and must remain a crucial part
of the ADR system in any country. Litigation is particularly vital for the existence of
mediation and other non-binding processes because one of the stronger incentives to
mediate is often to avoid adjudication.

The word “appropriate” also emphasizes two other important aspects of the prob- lem:
creating a dispute resolution system that is appropriate for a given legal system and
culture and matching a case to an appropriate dispute resolution procedure. There is a
lot of confusion about various ADR methods. Much of the confusion seems to occur
when people speak of ADR but actually mean different processes, very frequently
confusing mediation and arbitration. It is, therefore, particularly important for people to
recognize that mediation is qualitatively very different from arbitration.

2.3 Some Key ADR Distinctions

Understanding the key concepts and distinctions described

below can be important in using ADR effectively and in
understanding some of the concepts discussed later in this
manual:

a) Non-binding/binding

These words describe the type of commitment that parties make when entering the
ADR process. When they are bound to accept and respect the agreement of the ADR
process, such as a third-party decision in arbitration, that agreement is binding . In
non-binding processes, such as mediation or reconciliation, the mediator or
reconciliatory can not force the other parties to accept any agreement, , and it is only
the parties who can jointly agree on a certain outcome. Once the parties agree to a
contract, they are bound by their contractual obligations. Any resolution resulting
from a non- binding process culminating in contractual obligations of the parties can
be enforced by the courts either as a contract or as a court decision.

b) Voluntary vs. mandatory referrals to mediation

6
 These terms describe the method by which cases enter mediation (or other ADR
procedures). If a judge or court refers cases to mediation only at the parties’ request or
with consent of the parties, the referral is voluntary. As a general rule, mediation is
voluntary. However, in circumstances prescribed by law, participation in mediation is
required by the court, whether by an individual judge’s order or by a court rule. This
is known as mandatory mediation. Regardless of whether parties entered ADR with
their consent or because of a court order (court annexed or mandatory mediation),
they can decide whether to settle the case. Therefore, the parties are not mandated to
enter into settlement (as mediation is non-binding), but are obliged only to discuss in
good faith, with the other party settlement opportunities.

c) Interest-based vs. rights-based

These terms describe the main criterion that a procedure applies to resolve the dis-
pute. Interest-based dispute resolution processes expand the discussion beyond the
parties’ legal rights to look at underlying interests, deal with emotions, and seek cre-
ative solutions. The focus of these processes is on clarifying the parties’ real moti-
vations or underlying interests in the dispute and is future oriented. Mediation, for
example, is a process that traditionally focuses mainly on underlying interests.
Interest-based processes often provide the possibility of value-creation.

Rights-based processes, on the other hand, narrow issues, streamline legal argu-
ments, and predict judicial outcomes or render decisions based on assessments of the
legal rights of the parties. An example of a rights-based process is arbitration. ADR
processes can contain both interest-based and rights-based elements, depending on the
structure of the process or the style of the neutral (e.g., some mediators predict legal
outcome as well as facilitate negotiations). Mediation, in particular, is a type of a
process that usually encompasses interest-based and right- based elements. However
it is suggested that facilitative, interest-based mediation is less expensive and more
likely to produce value-creating results.

2.4 Key Takeaways

a) ADR is a number of disparate processes used to resolve disputes.

b) Parties to a dispute are offered this path as an alternative to expensive and time-
consuming litigation.

7
 c) In some instances, ADR offers to settle disputes outside of the courtroom with the
help of an impartial third party.

d) Outcomes may be non-binding and advisory in nature or enforceable without the

right to appeal.

e) Some ADR mechanisms are interest-based while others are rights based.

2.5 How Alternative Dispute Resolution (ADR) Works

Alternative dispute resolution (ADR) is designed to settle disputes outside of the

courtroom. In some mechanisms, with the help of a third party.

a) When the disputing parties agree to try alternative dispute resolution procedures, the
ADR process starts. This understanding could be imposed by a court order, a contract
clause, or both. It could also be voluntary. The parties select the most effective ADR
strategy for their dispute, frequently with the help of legal counsel.

b) Preliminary negotiations to set the procedure's structure and regulations typically

kick off the next stage of the ADR process. This entails creating confidentiality
agreements, describing the timetable and expectations for the ADR process, and
determining the roles and obligations of the parties. The parties may exchange
pertinent information, documents, and evidence at this point as well.

c) During the final stages of the ADR process, the parties negotiate a settlement to the
conflict. If a settlement is reached through negotiation, the parties will create a
settlement agreement outlining the details of their arrangement. The parties must
then work to put the provisions into effect and carry out their respective
commitments (i.e., make settlement payment should that party be found liable).
Sometimes ADR is in form of a binding arbitration process that results into an
enforceable arbitral Award. This process is akin to court process but different.

8
2.6 Justification and benefits of Alternative Dispute Resolution

To appreciate the benefits of ADR, it is important to restate what courtroom litigation

actually does. Courtroom litigation is in most cases time consuming, frustrating,
extremely stressful, and expensive and does not always provide the best results.
Alternative ADR however provides answers to all these by offering for the settlement of
disputes in a flexible and convenient forum, fast settlement at any stage of the dispute
including appeal stage, active involvement of the disputants themselves and
meaningfully satisfactory results. In simple terms, Alternative Dispute Resolution; -
a) Saves time because dispute resolution can be done at any time a case is filed in court,
even during appeals.
b) Offers confidentiality given the fact that it is strictly confidential and nothing that
takes place at mediation is admissible in a court of law should ADR fail to settle the
dispute and the parties litigate in court. However, not all ADR mechanisms provide
for confidentiality unless agreed upon by the parties.
c) It is also user friendly and offers more control to disputants (party autonomy) to reach
an amicable settlement by themselves.
d) It allows flexibility given the fact that the process is not bogged down by strict
compliance with court rules. The rules applied are simple, logical, and equitable.
e) It provides a final solution to disputes given the fact that when parties reach an
agreement, it becomes a contract that is binding on them, like any other contract.
f) Alternative Dispute Resolution helps avoid bad publicity associated with court room
litigation by which litigants wash their dirty linen in public.
g) It also fosters peace and harmony by generating options, saving relationships and
providing undoubtedly satisfactory results to disputes.
h) It effectively supplements courtroom litigation by reducing the piling up of cases in
court which would otherwise create backlogs.
i) It helps decongest prisons, by the use of mediation in transformative justice.
j) It helps lawyers to have their cases disposed of faster hence ensuring their regular or
certain income.
k) Expertise of decision maker: the decision maker is usually chosen by parties and
appointed on the basis of prior experience and expertise in the sector. For technical or
specialised disputes, this can save a huge amount of time and cost.
l) ADR provides a fertile ground for selecting interested lawyers for appointment to the
bench.

9
 In Uganda, our traditional rulers, elders, family heads and opinion leaders have used and
continue to use informal and non-contentious approach to resolving disputes.
Documented examples of this in Uganda include Matoput (from Acholi); Ailuc (Teso);
Vuna a lejjo jo ka (Madi) and Embuga (Buganda). In more modern times, institutions
like Local councils (LCs), FIDA-U, and Legal Aid Clinics have also used some forms of
Alternative Dispute Resolution to resolve disputes that come before them from time
memorial. As far back as the 1930’s the law in Uganda provided through the old
Arbitration Act (cap 55) for Arbitration as an alternative route, though it was rarely used.

2.7 Disadvantages of ADR

Though ADR may sound favourable in many cases, there are situations in which it not
advised or an appropriate litigation option. At its core, ADR can be used to settle most
disputes. In other cases, ADR just doesn't make sense as an option. In general, ADR is
not appropriate for resolving criminal matters involving grave violations, such as
murder, assault, or significant fraud charges. However, Uganda has registered
commendable success in this space in areas of plea bargaining as we will cover in
another module. It is also not typically acceptable in circumstances involving domestic
abuse, sexual harassment, or where one side has a lot of negotiating power over the
other.

In certain situations, ADR may not be appropriate for resolving disputes concerning
topics of public concern. For example, consider constitutional questions, environmental
laws, or policy choices requiring a more comprehensive look at society in which the
general public would benefit by the issue at hand being fully investigated. This may
also include situations where there have been violations of human rights, illegal
detentions, or constitutional rights.

2.8 Legislative provisions on Alternative Dispute Resolution:

Alternative Dispute Resolution has recently taken Centre stage as the preferred mode of
resolving disputes, especially those of a commercial nature. There are a number
of legislative provisions on Alternative Dispute Resolution and these include; -

a) The Judicature Act, Cap. 13

10
 This Act provides for Alternative Dispute Resolution under Court’s direction.
Sections 26 to 32 of the Act provide for situations when matters can be referred to a
special referee or arbitrator to handle where such official has been granted by High
Court powers to inquire and report on any cause or matter other than a criminal
proceeding. These provisions read together with section 41 of the Act, which
stipulates for the functions of the Rules Committee give the origin of the Judicature
(Commercial Court Division) (Mediation) Rules which have paved way to the
Judicature (Mediation) Rules S.I 10 of 2013 introduced mandatory mediation for all
civil matters filed in the High Court and Subordinate Courts.

b) The Civil Procedure Act (Cap. 71) and the Civil Procedure Rules S. I71-1

Order XII of the Civil Procedure Rules provides for “Scheduling Conference and
Alternative Dispute Resolution”. Rule 1 (1) thereof provides “The Court shall hold a
scheduling Conference to sort out points of agreement and disagreement, the
possibility of mediation, arbitration and any form of settlement.”

This provision is meant to help the parties consider the option of settling the matter
before a Court hearing can commence. Order XII rule 2 further states Court’s
emphasis on Alternative Dispute Resolution. It provides: –

“(1) Where the parties do not reach an agreement under rule 1, . . . the Court may,
if it is of the view that the case has a good potential for settlement, order
alternative dispute resolution before a member of the bar or the bench, named by
the Court.

(2) Alternative dispute resolution shall be completed within twenty-one (21) days
after the date of the order. This time may be extended for a period not exceeding15
days on application to the Court, showing sufficient reasons for the extension.

(3) The Chief Justice may issue directions for the better carrying into affective
alternative dispute resolution.”

Order XLVII (47) further provides for Arbitration under Order of Court, also referred
to as Court-annexed Arbitration. An arbitrator shall be appointed in such manner as
may be agreed upon between the parties.”

c) The Arbitration and Conciliation Act (Cap. 4)

This Act regulates the operation of arbitration and conciliation procedures, as well as
the behavior of the arbitrator or conciliator in the conduct of such procedure. This Act
incorporates the provisions in the 1985 United Nations Commission on International
11
 Trade (UNCITRAL) Model Law on International Commercial Arbitration as well as
the UNICITRAL Arbitration Rules 1976 and the UNCITRAL Conciliation Rules
1976. It also domesticates provisions of the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)

The Act also provides for the Centre for Arbitration and Dispute Resolution
(CADER) as a Statutory Institutional alternative dispute resolution. Sections 88 and
89 of the Land Act (Cap 227) provide for Customary Dispute Settlement and
mediation as well as the functions of the mediator.

d) Magistrate Court’s Act Cap 6

Section 160 of this Act provides for reconciliation in criminal matters.

Elements essential for successful ADR

This is intended to cover ADR methods that involve negotiation.

12
2.9 Drafting Alternative Resolution contractual clauses;

It is very common for modern commercial contracts to include a provision for an ADR
process. However, during a negotiation, parties often do not engage with this aspect of
the contract and the result can be that an unclear, or unenforceable, ADR clause is
inadvertently agreed. Recent case law has provided some guidance as to what courts will
consider and what core elements make up an effective ADR clause.

The case of Children's Ark Partnerships Limited v Kajima Construction Europe

(UK) Limited & Anor [2022] EWHC 1595 (TCC) is instructive on how to draft
effective ADR Clauses. In this case, the contract between parties contained a dispute
resolution procedure which required parties to refer disputes firstly to a “liaison
committee” and stated that the committee’s decision should be final and binding. The
contract also stated that parties “may” refer a dispute to mediation and adjudication
before dealing with court proceedings. The court determined that a properly drafted ADR
clause was a condition precedent to litigation, meaning it must be satisfied before
litigation can be commenced, however the clause was held to be unenforceable as it was
neither clear nor certain. The main reasons for this listed by the court included:
a) there was no meaningful description of the process to be followed;
b) there was no unequivocal commitment to a particular ADR procedure;and
c) the provision did not define the liaison committee.

The central lesson from the case is that an ADR clause can create a condition precedent
to the commencement of court proceedings. While parties never want to think they will
end up in a dispute, there is huge benefit to giving it consideration while they are still on
good terms. A properly drafted clause can remove uncertainty and have a major impact
on the conduct and outcome of disputes between parties. Without that certainty, parties
risk proceeding down a costly course of action to resolve the dispute, which may result
in wasted expenditure that is unrecoverable. Also, very important elements and
milestones of a dispute can be outlined in a clause at the outset, such as: the parties can
pick and choose the level of good faith negotiation prior to escalating the matter; the
appropriate ADR forum to resolve the dispute in; who the “dispute resolver” is; and the
extent to which the outcome of the ADR process binds the parties and is open to review.

There are four factors to focus in on when considering an ADR clause. These are:

13
e) Be clear and concise –The court will endeavour to give effect to parties’ intentions
wherever possible, but it is much easier if these are expressed in a way which creates
little room for doubt. Consideration should be given to the scope of the clause. Parties
should clarify, using unequivocal language, whether they want all disputes to follow
the same process, or only specific types of disputes;

f) Objective criteria – the case law highlights the benefits of an unambiguous process
referring to objective criteria. Where this exists, the courts show a willingness to
uphold the provisions;

g) Beware of defined terms – if the dispute resolution clause makes reference to

defined terms, these should be explained as clearly as possible.

h) Be specific – it is preferable that the provision expresses a commitment to a particular

form of ADR. Parties should give thought to the advantages and disadvantages of
different types of ADR in advance and commit to one where possible. Outlining the
process to be followed thereafter is particularly helpful.

14
3. MODULE TWO: NEGOTIATION, MEDIATION, CONCILIATION AND
ARBITRATION

3.1 Introduction

This module will expose students to the ADR continuum from self-help to formal and
binding arbitration. The focus will be on negotiation, conciliation, mediation, and
arbitration. The students will be exposed to the basic principles relating to negotiations,
mediation, conciliation arbitration and small claims procedure in the resolution of civil
disputes. They will be skilled on the application of ADR in the resolution of civil
disputes. Negotiation will be defined, looking at the advantages and disadvantages,
negotiation processes. Mediation will be defined and students will be exposed to
mediation theory and practice, court processes, mediation processes and techniques, self-
awareness, ethics and small claims court. Negotiations and Mediation are life skills and
may be utilized every day in all situations involving others as well as an opportunity to
self-transform. Students will address established principles of arbitration law, the various
types of arbitrations, and the rules governing arbitration, the role of counsel in the
arbitration process, as well as the power, responsibilities, and ethical requirements of an
arbitrator.

3.2 Module Content

Introduction to Negotiation; Primary consideration of Negotiation; when negotiation is

appropriate, nature of bargaining power; Elements affecting bargaining power; Perceived
advantages and disadvantages of negotiations; legal effects of negotiation agreement.
Introduction to Mediation; Understanding Mediation; Court Annexed mediation;
Reference of disputes to mediation by agreement; Inside the Mediation Process; small
claims court procedure; Effective Listening Skills - Characteristics of Effective
Listening; Listening Styles for Effective Communication Listening Styles; Comparison
between Mediation and Conciliation; Ethics and Legal issues. Overview of the common
rules of arbitration; Initiating the Proceedings; Confidentiality; Pre-Hearing procedure;
The Hearing; The Arbitral Award.

There are several Alternative Dispute Resolution processes in practice now and these
include negotiation, conciliation, mediation, and Arbitration among others. The
categories of ADR procedures are agreement, decision, and advice. These are defined as
follows; -

15
 a) Procedure of agreement- negotiation, mediation, facilitation, and mini-trials are all
procedures of agreement. The work product or result from these procedures is based
on the agreement of those who take part. If there is no agreement, there is no
outcome. Participants in ADR process of agreement are actively involved in working
together to create an outcome that is potentially superior to any outcome that they
could individually create.

b) Procedure of decision –Arbitration is a procedure of decision making by a third

party very similar to adjudication. The work product or result from this procedure is
based on the decision of a neutral third party about how the dispute is to be resolved.
The third party neutral’ job is specifically to render that decision. Participants in this
process may be collaboratively involved to design the process/procedure or to ensure
its efficiency. However, when it comes to taking in the ultimate decision process, the
participants’ roles are not collaborative but adversarial and limited to putting forward
facts and argument.

c) Procedure of Advice –neutral case evaluation or early neutral evaluation, non-

binding arbitration, fact finding or investigation, and expert opinion are all
procedures of advice; the work product or result from these procedures is intended to
inform or advice the participants.

3.3 The ADR continuum has the following methods: -

a) Self-help- Disputants may take matters into their hands and attempt to resolve the
situation themselves when they convince themselves that there is no other appropriate
method to resolve it. This could involve physical confrontation or a strike.

b) Partnering -This is a conflict prevention mechanism rather than a remedial process.

It is typically encountered in construction industry. In construction project the
contractor, sub-contractor, architect, and other stake holders, agree that construction
project will not stop during dispute resolution, regardless of the methods of dispute
resolution they choose.

c) Hilo- Arbitration-Here the parties agree, before arbitration, on the minimum and
maximum award. The arbitrators’ award must fall within these figures, or it will be
adjusted to fall within the figures. Arbitrator may or may not know the limits before
he renders the award.

d) Mini-Trial-It is fact finding form of ADR. It involves conducting a trial –like hearing
in advance of actual trial, usually in informal setting with a private presiding officer,

16
 privately retained ‗Jurors ‗ and someone role-playing the representative for the other
side.

e) Early neutral evaluation-Where an independent third party evaluates the claims

made by each side and issues an opinion –either on the likely outcome or on a
particular point of law.

f) Ombudsmen-Are impartial referees who adjudicate on complaints about public and

private organization. Generally, ombudsmen serve as a last resort when complaints
cannot be or are not resolved through the internal complaints procedure of the
organization complained about.

g) Arb-Med –a sequence in which the parties first submit their case to arbitration. In
this approach, the arbitrator makes and seals the arbitration decision before
undertaking mediatory efforts or before turning the dispute over to another impartial
person who will mediate. If mediation fails, the parties will be bound by the then
revealed arbitration award. The purported relative strengths and weakness of their
case played out in the arbitration stage of the procedure; the parties will have a more
realistic understanding of what would constitute a reasonable accommodation
position. Accordingly, they should be better able to reach a mediated settlement. That
is why it is called Arb-Med.

h) Med-Arb- refers to the situation in which, by agreement or by law, negotiating

parties submit to the intervention of mediation which will be followed by arbitration
if an agreement is not reached. If parties do not reach a negotiated resolution of their
difference, the issues can be submitted to arbitration for an imposed resolution. The
assumption is that this will force each side to present a reasonable, attractive last offer
– one that will be more attractive to arbitrator and, for that same reason, will be more
likely to gain the other side’s acceptance.

i) Negotiation - is a consensual bargaining process in which parties attempt to reach

agreement on a disputed or potentially disputed matter.

j) Mediation –is a method of non-binding dispute resolution mechanism involving a

neutral third party who tries to help the disputing parties reach agreeable solution.

k) Arbitration – means a process by which a tribunal other than a court decides a

dispute between two or more parties under authority granted by the parties under an
arbitration agreement. There might be also compulsory arbitration- without the
consent of disputing parties.

17
3.4 Cases eligible for Alternative Dispute Resolution.

a) Where both parties are committed to reaching a settlement.

b) Where the parties are desirous of having a continuing relationship.

c) Where the conflict between the parties is not complicated and can be resolved
through the processes of Alternative Dispute Resolution.

d) Where the parties have got equal bargaining powers.

3.5 Cases not eligible for Alternative Dispute Resolution

a) Where a legal, commercial, or other precedent needs to be set.

b) Where a summary judgment can be given fast and efficiently.

c) Where parties require an injunctive or other protective relief.

d) Where publicity is actively sought.

e) Where the parties are not interested in settlement.

f) Where the offence committed cannot be resolved through Alternative Dispute

Resolution legally.

3.6 Roles of a Mediator/Arbitrator/conciliator.

i. The mediator or neutral third party helps in facilitating communication among the
parties to a dispute to assist them reach a mutually acceptable resolution.

ii. The mediator helps in managing and controlling disputants’ emotions.

iii. The mediator or neutral third party guides the disputants through the mediation steps.

iv. The mediator drafts the agreement which contains the resolutions of the parties in
dispute.

18
3.7 Skills required for Successful Alternative Dispute Resolution

It is important to note that conciliation/mediation/ arbitration skills are partially acquired

and partially depend on personality make-up. The following are the acquired skills; -

a) Communication skills: active listening

This is one of the most important and difficult skills for a negotiator and a mediator.
Active listening as a skill and technique are taught to, and applied by, negotiators and
mediators to enhance their effectiveness during the process. Active listening means
stopping our inner voices, and truly listening to the other person. Listening will
enable you to hear important information and learn a great deal about the other party.
By listening attentively, you:

b) Show interest in what the other party has to say (affirmation/encouraging).

Show understanding to the way they feel, their positions and underlying issues,
hidden agendas, demands, and priorities. It is important to note that showing
understanding does not mean that you agree with what was said. Acknowledge that
people like to be listened to, and when you listen, you create a positive atmosphere.
Hope it may clarify many issues; make you understand the other side’s point of view,
and show respect to the other party’s needs, hopes, and fears. Hope it may help to
improve the relationship and break the cycle of arguments.

c) Communication skills: talking clearly and precisely.

Effective negotiation mediation is also making sure that whatever you said was
understood in the way that you meant it to be. You have to speak clearly, phrase your
sentences carefully, make sure that the other party listens to you, and check with the
other party to make sure that they understood you correctly. Send messages that are
comprehensive, and explain where you are coming from, your needs, hopes, and
fears. While talking you have to assess if the other party is listening, and how they
hear/receive your message.

d) Re-framing positions as interests

19
 Re-framing is a way of giving feedback and showing that you listened and
understood what the other party said. It is restating and capturing the essence of what
the other party said. One removes the negative tones and translates the statements of
positions into statements of interests and needs. When we start negotiating, we have
to identify the issues at the table. The issues have to be defined in a neutral and
acceptable way to all, and not include any suggestions of the outcome, or judgment
of any kind.

Typically, parties start the negotiation process by stating their position, and their
conclusion of what to do based on it. If the one party opens the negotiation in this
manner, that is, by stating a position, it is very helpful to re-frame it as an interest. It
helps the parties to identify their interests and move from position to interests.

e) Understanding and perception

The negotiation/mediation process is influenced by our perceptions and our

interpretation of reality. Perceptions are influenced by personal experience, emotional
state of mind, and cultural background. The negotiator and mediator have to keep eye
contact, listen carefully, and make sure that they understood exactly what the other
party said.

It is important to reframe what was said in order to make sure that what was said was
understood and was indeed what was meant. Make sure that what was said was
understood correctly, and that the other party knows you have understood. For
example: “Let me make sure that I understood what you said, when you said that we
should go ahead with our plans: does it mean that you will be a full partner, or just
our contractor?”

When you negotiate in India and the other party nods his head up and down, does it
mean “yes”? In India it means “No.”

f) Open questions

20
 Questions are an essential skill for the negotiator and mediator. When asking a closed
question, we get “yes” or “no” for an answer. Often these types of questions are also
leading questions “Would you agree that . . .” or “Didn’t you think that it was unfair .
. .” The closed questions, and the leading ones, do not provide us with the essential
information we need at the negotiating table, and they tend to close down the
discussion. “Do you want to buy this property?” will provide us only with a “yes–
no” answer, which does not include all the important information regarding the
intention/ability of the buyer. “What are the problems that concern you?” is a
question which will provide us with important information as to how they feel about
it, what are their concerns, their plans, and so on. “How do you view the offer Mr.
Brown has just made?” is an open-ended question, while “Do you like Mr. Brown’s
offer?” is a closed question.

Open-ended questions such as: “What are in your opinion the possible advantages
and disadvantages regarding his offer?” or “What would you need to clarify prior to
your counteroffer?” provide us with important information that can help the process
rather than bring it to a dead end. You have to be aware of your prejudices, values,
and biases when you ask the questions, so that if you have any, they will not be
evident from your tone or body language.

g) Separate the people from the problem.

It is important to understand the other party’s point of view, needs, interests, and
concerns. One does not have to agree with the other point of view; just understand
that it is legitimate to have a different point of view, needs, and concerns.

One has to separate the people from the problem. Removing the person usually does
not remove or solve the problem. However, trying to separate the person from the
problem is not always practicable. There are societies in which personal relationships
have a very high value, and separating the two is difficult. The mediator must be able
to express him/herself through writing. Personality make up skills include:
a) The mediator/negotiator should be patient, persevering, and flexible to
changing circumstances.

b) The mediator/negotiator should be able to manipulate proceedings in an

unobtrusive manner.

c) The mediator/negotiator must be confident, assertive, able to take and

accept criticism.
21
 d) The mediator/negotiator must have good listening skills.

e) The mediator/negotiator must be analytical, tactful, reasonable firm,

resolute and self-controlled.

f) The mediator/negotiator must be able to feel comfortable with uncertainty.

In view of the above, Alternative Dispute resolution should be an optional or

complementary dispute resolution rather than a substitute.

4. METHOD 1: NEGOTIATION

4.1 Definition

It is a process by which people try to reach an agreement or settlement where there are
differences either real or perceived. This encompasses any exchange of information
made by two or more persons in search of an agreement to do (or refrain from doing)
something. It is also a process of working out an agreement by direct communication
between the parties. Negotiation occurs any time lawyers meet to discuss any aspects of
an ongoing or proposed transaction or dispute. It occurs when suggestions, proposals,
solutions, offers, counteroffers, concessions, positions or arguments are shared.
Negotiations can be interest based for example divide the pie or competitive, winner
takes it all.

Negotiation is the most basic means of settling our differences. It is back-and-forth

communication between the parties themselves without or with very little external
assistance to the conflict with the goal of trying to find a solution. Negotiation can take a
wide variety of forms, from a trained negotiator acting on behalf of a particular
organization or position in a formal setting, to an informal negotiation between friends.

Negotiation can be contrasted with Mediation where a neutral third party listens to each
side's arguments and attempts to help craft an agreement between the parties. It can also
be compared with Arbitration, which resembles a legal proceeding. In arbitration, both
sides make an argument as to the merits of their case and the arbitrator decides the
outcome.

Negotiation can include:

a) Discussion and questioning

22
 b) Compromise or concessions

c) Shared compatible (common) and conflicting interests

d) Exchange of information

e) Persuasion by argument, etc.

f) Negotiation can range from simple transactions e.g. bargaining over price of an item
between buyer and seller

g) Negotiation can range from simple transactions e.g. bargaining over price of an item
between buyer and seller

h) To more complex or sophisticated scenarios e.g.

i) Separation agreements, leases and international negotiations.

j) It covers all spheres of life; ordinary life (e.g. family), Commerce/business, politics
etc.

4.2 Understanding the type of negotiation in which you are participating

Different types of negotiations require different tactics: Negotiating the price of a car is
different from negotiating the terms of a multi-million-dollar acquisition, not only in
terms of overall value and importance, but also with regard to the number of parties and
stakeholders involved. You negotiate differently depending on whether it is for yourself
or on behalf of the client or another party, or between co-workers, loved ones, or
strangers; not surprisingly, the emotions vary depending on what is at stake. Other
factors affecting the choice of tactics and likelihood of successful
outcomes include: culture of the parties, time available, suspected length of the
relationship and previous experience between the parties.

There is no single “best way” to negotiate – you need to adapt your style to each
situation in order to create and capture the greatest amount of value, including agreeing
on contingency deals.

a) Distributive negotiations

23
Think of the stakes or total value under consideration in a negotiation as a pie. In
“distributive” (or “zero-sum”) negotiations, each negotiator strives to capture the largest
possible piece of a pie whose sum total is perceived to be fixed. Successful bargaining
requires understanding and shaping your and your counterparts’ perceptions of the range
of outcome values (the bargaining zone) as well as the target (goal) and bottom line.
b) Integrative negotiations

In contrast, “integrative” negotiations focus on creating and capturing joint value

through mutually beneficial trades to arrive at the best possible agreement for both
parties, ensuring that nobody walks away feeling like a loser. This involves enlarging to
the maximum extent possible the total pie of value to be divided between the parties. It
requires cooperation, disclosure, listening, creativity as well as effectively managing
“negotiators’ dilemmas” and knowing what information to share and how to share it.
c) Persuading others

The concept of persuasion, as an ongoing social process of discovery, preparation, and

dialogue. Persuasion is part art, part science: the art is establishing and sustaining trust;
the science is collecting and analyzing information and understanding human behavior.

People commonly believe that others can be persuaded through logic, persistence, and
enthusiasm but this is not always sufficient. De Janasz emphasized that persuasion is
“something done with another, not to another.” This means the target gets to choose,
which increases his/her commitment to the new belief or behavior.

Other persuasion mistakes include the hard sell, which often fails (one-way
communication focused only on arguments); resisting compromise (“the truth is obvious,
why can’t you see?”); being unaware of your credibility (why should anybody
be persuaded by you?); adopting a simplistic view of stakeholder positions (“either you
are with or against me”); and lacking flexibility in influence tactics.
d) Best practices in persuasion

24
There are better ways to approach the art of persuading others, specifically, the following
four steps:

Understand others’ motivations and needs: Identify key decision makers, listen, check
perceptions, observe, and use your network to help segment your audience (the people
you need to influence) according to the degree of alignment, i.e., how closely you think
others agree with your agenda, and the quality of the relationship and trust in you.

Establish credibility: Demonstrate expertise about your agenda by sharing knowledge,

reliable data, clear explanations, non-defensive responses to challenges, and building
trust by exploring ideas together and showing commitment to their interests.

Utilize appropriate influence tactics.

Support preferred outcomes with real and accurate data: Data should be in multiple
forms such as a frame for common ground and demonstrate tangible benefits. Do not
make things up or you are more likely to lose credibility when the truth is discovered.

Resolving disputes

Conflict is a natural dynamic that arises when people’s interests, perceptions, goals,
values or approaches to problems differ and when one party feels that another is
interfering with their ability to attain a certain objective. It may occur between
individuals or groups and range from minor disagreements to major disputes or even
war. It can be costly and dysfunctional; it can also be positive by spurring action and
outcomes that would not have occurred otherwise.

Whatever the conflict situation, your response can have a profound impact on the
outcome. To avoid escalation and increase your chances of reaching an agreement, it’s
best to focus on the following actions:
a) Control your temper and emotional response (pause before reacting)

b) Understand and clarify the issues and goals

c) Decide whether to engage; remember that you have the choice

d) Search for a common goal or ground

e) Take a break if things become too intense

f) Bring in a third party, or threaten to do so

25
 Negotiating Principles and Techniques

Most winners in negotiations recognize a dichotomy between two different approaches

to negotiations; Aggressive/adversarial and Cooperative/problem solving approaches

a) Aggressive Approach

The type of Negotiation involves a.

“Win-Lose” situation.

The process is Adversarial and argumentative there is use of emphatic language and
confrontational attempts to wear down the opponent.

It also involves/ includes bullying or demeaning the opponent to a “Zero-sum game.”

Adversarial strategy on contrary seeks to maximize gain without regard to how other
participants’ fare. It assumes that negotiation involves limited resources which are
distributed so that what is gained by one negotiator is lost by others. It also assumes that
all issues are fungible, or to convert all interest into tangible, measurable terms typically
money or units of production. Their objective is to maximize the money or units gained
as the results of negotiation. It often allows little room for acting on genuine concern for
others. Adversarial strategy when successful rewards negotiators who are stubborn and
who get others to concede more than they do. If reciprocated, this generates contest of
will as negotiators state what they will and will not do.

b) Co-operative Approach

● “Win-Win”

26
 A problem-solving strategy seeks fair deals or solutions. It seeks to promote mutual gain
consequently; it requires consideration of the interest of other negotiators.

Ensuring that everyone’s needs are met is a critical component of the search for fair
deals or solutions. Problem solving strategy is likely to generate fluid and flexible
discussions aimed at identifying needs and refining possible solutions. It often produces
a relatively distinct separation between the phases of exchanging information about
interests and developing solutions that maximizes joint gain. For example, a company
and a union may negotiate both to reach a new labour management contract, at the same
time they are negotiating to end a strike or lockout. It also involves dealing with
differences as if they were a joint problem which can be solved by analysis and pooling
of information and resources. “It is a “Win-win” situation.

Co-operative approach also includes Principled Bargaining Approach which advocates

five (5) principles
1. Separate the people from the Problem
2. Focus on interests, not positions.
3. Invent options for mutual gain
4. Insist on using objective Criteria

It assumes the other party will follow same approach, i.e. will be co-operative. What if
he doesn’t? However, both strategies are useful. Few negotiations are most effective
conducted exclusively in either problem solving or adversary strategic mode. Most
negotiations involve more than one issue. Lawyers might appropriately choose problem
solving strategy on all issues except those that are distributive, for which adversarial
strategy maybe appropriate if they cannot be traded off for other issues. Lawyers must
always asses which strategy is in use by themselves and others in their interactions and
prepare to respond effectively.

c) BATNA Approach

Developed by the authors Fisher and Ury in their bestselling book “Getting to yes”,
Batna means “best alternative to a negotiated settlement” and is normally used as
leverage during a negotiation process. Batna requires preparation in going to
negotiations with a series of options. Batna therefore envisages:
1. Inventing a list of actions, one might take if no agreement is reached
2. Converting some of the more promising ideas and transforming them into tangible
and partial alternatives

27
 3. Selecting the alternative that sounds best.

Negotiation skills
While negotiation may depend in part on the personality of the negotiator, possession of
good negotiation skills is very vital. Negotiation skills can be learned (e.g. from training
& experience) just like court room advocacy skills can be learned. Successful negotiator
should possess good negotiation Skills.

Importance of Negotiation Skills

 Negotiation is very important in resolving disputes or conflicts – especially in U.S.A.,

U.K. and other developed countries. E.g. in U.K., about 80 – 90% of civil cases are
settled out of court by negotiation.

 Unlike litigation (court room advocacy) where the advocates try to persuade a third party
(the court) who will make a final determination of any differences/dispute, in negotiation
the negotiators (parties) are trying to persuade each other about how they can between
them, resolve differences/dispute.

28
4.3 STAGES OF A NEGOTIATIONS PROCESS

a) Preparation

The secret of effective negotiation is to prepare, prepare and prepare. This makes it no
different from any other aspect of lawyering. Preparation and planning require attention
to both the process of negotiation and the content that is being negotiated. Focusing on
the process of negotiation requires assessing the bargaining situation to determine
whether to use a problem solving or adversarial strategy. One must assess the number
and nature of issues involved and the relationship factors among clients and negotiators.
Preparing for the content of a negotiation requires careful consideration of the client’s
goals and what is realistically possible in the negotiation and through alternative to a
bargained agreement. It requires careful attention as to how information should be gotten
from, given to and guarded from other persons.

b) Information: giving, getting, guarding

Information exchange in negotiation typically occurs in one or two ways;

Data may be given by negotiators unilaterally or disclosed in response to request made

by participants.

Giving information- negotiators inevitably involve giving information about anchoring

points which begin exchange and mark movements.

Getting information- one of the most effective ways to get information during a
negotiation is the most obvious that is asking questions especially detailed ones may
depend on the culture and context, invoke an important norm of reciprocity in
information sharing. Listening is another way of getting information because effective
negotiators typically listen far more than they speak.

Guarding information- many negotiations present situation where some information

needs to be protected from disclosure.

c) The negotiation agenda

The agenda has to be developed and this describes how issues in the negotiations are
defined and sequenced. An agenda may be informal where negotiators simply start
talking or more formal where negotiators agree sometimes in wring how the issues will
be defined and sequenced.

29
 d) Proposals and offers

Anchoring points begin exchanges and mark movement. In problem solving strategy,
these are described as ‘proposals’, ‘options’ or ‘solutions’ regarding how situations can
be resolved in ways that meet the needs of all participants. In adversarial strategy they
are usually called ‘offers’, ‘positions’, ‘counteroffers’ or “concession”.

e) Searching for agreement

Although the entire negotiation process is a search for agreement, several tasks either
occur or intensify as lawyers move from initial proposal or offers to agreement.
Adversarial strategy involves narrowing differences between initial positions until an
acceptable compromise is reached. Problem solving in contrast, creates a process of
elaborating, clarifying and modifying proposals until solutions are crafted that satisfy
participant’s needs.

4.4 Communication Tactics In Negotiations

a) Listening
Some Suggestions Relating to Listening.

Open your eyes, mind and ears listen carefully, interpret and filter. Listen to what is said
and what is not said as you summarise what you have heard. Listen actively and Give
full attention and don’t interrupt nor hold side conversations. Listen most carefully to
what you don’t like and Let other side have last word.

b) Anger
May be useful to scare, intimidate, and find out a person’s true intentions put off the
hook
Caution - before use it ask.
What is the cost, can you use it effectively? What about culture of the other side?

In American culture anger is a negotiating tactic but not in Japanese culture.

Cross-cultural negotiation may make allowances that other side’s culture may be
different from yours.

c) Fatigue
It is not good for effective negotiation as it may cripple negotiating abilities.
30
 “Win-Lose” school often wants to exploit fatigue. Don’t negotiate when suffering from
fatigue. Relax before you start the Negotiations.

d) Harassment
Many things can be done to harass a negotiator such as, Sitting on hard seat/chair, strong
lighting, no food or drink, uncomfortable accommodation or transport etc.

e) Hosting Negotiation

Advantages:
Home ground – Comfort Resources – easy access to entertain well – (cultural aspects) –
hospitality opportunity to assess the other side control over proceedings climate
established has psychological effect.

Disadvantages
Interruptions and expensive, the atmosphere – may not be impressive, the proximity to
superiors/principals.

Use of outside negotiators

International (foreign) negotiators.

Advantages
Not biased, they may have Special skills, Deniability – If it does not work out, you have
somebody to blame, transfer of Technology – on job training for own personnel.

Disadvantages
Not interested in result/subject as they are not part of the organisation. They lack Loyalty
or commitment. They are also not interested in long term relationship, but in aggressive
short-term victory. Perpetuates dependency on foreign consultants. Neglect of local
personnel capacity building and Cultural sensitivity – Cross – Cultural sensitivity –
foreign consultant may not be sensitive to local culture Disclosure of confidential
information or secrets to other foreign consultants.

31
4.5 The Role of a Lawyer in Negotiations

Lawyer’s role (on team)

He acts as a draftsman.

Provides Legal advice

Generally, not leader (This is a regular misconception in negotiations where lawyers

want to take a lead)

Lawyer’s potential contributions as negotiators

Asset: Qualifications as he possesses Legal training and technical knowledge about the
Law.

Liability: Lawyers tend to be too legalistic. Common law training – adversarial and they
tend to stick to rules – rigidity, they tend to talk too much – use legal jargon and may
lack negotiating experience. Narrow range of skills as Lawyers are regarded
troublemakers

Opportunities: Subject matter – Legal knowledge, e.g. Contract and are good at drafting.
There is much respect among lawyers as other side may include lawyer.

Constraints: Resistance of some nationalities. Tradition of excluding lawyer’s and lack

of contact between where team is selected and lawyer.

32
4.6 Why Negotiations Fail

Time limit to do certain things, yet time is a potentially useful tool in negotiation as 80%
of successful negotiations are made within last minutes. Creation of pressure on party.
Can be useful for intramural concessions (within a team) and across the table negotiation
(actual/extra mural neg.) Try to keep deadlines if reasonable and practicable, otherwise
resist. Impasses and disagreements happen in many negotiations related to time

Some tactics of relieving (resolving) deadlocks.

Flexibility and Intuitive style of negotiation hence focus on situations as a whole. One
has to be quick in reacting to response/reaction of others. Keep discussions going on
don’t be quick to adjourn. Change team members and have side meeting Research so as
to get additional information. Compromise leave, leave controversial issues and go to
other matters. Call off negotiation.

NB: Students should be taken through a role play on conducting an effective negotiation.

33
5. METHOD 2: MEDIATION

5.1 Definition:

Mediation is a voluntary process in which a neutral third person to the dispute (the
mediator) helps with communication and promotes reconciliation between the parties
which will allow them to reach a mutually acceptable agreement. It is a process in
which a mediator assists and facilitates two or more parties to a controversy in reaching
a mutually acceptable resolution of the controversy and includes all contacts between a
mediator and any party or agent of a party, until such time as a resolution is agreed to
by the parties or the mediation process is terminated.

Mediation often is the next step after negotiation if bilateral negotiation proves
unsuccessful. Mediation is voluntary, and any party or the mediator may terminate at
any time.

Notwithstanding that a mediator may be a solicitor, barrister, surveyor or other

professional, when acting as a mediator he or she acts as a neutral facilitator of
negotiations and does not give professional advice to the parties, individually or
collectively, nor does he or she represent any party, and mediation is not a substitute for
each part obtaining independent legal, accounting, tax or other professional or technical
advice.

The mediator tries to assist the parties to reach a conclusion of the dispute which is
appropriate to their particular circumstances, and not necessarily the same conclusion
that might be arrived at in the event of adjudication by the court. That allows the parties
to explore and agree upon a wider range of options for settlement than might otherwise
be the case.

5.2 WHEN AND HOW MEDIATION IS USED

34
 When parties are unable to negotiate a resolution to their dispute by themselves, they
may seek the assistance of a mediator who will help them explore ways of resolving
their differences. They may choose to go to mediation with or without a lawyer
depending upon the type of problem they have. They may always consult with an
attorney prior to finalizing an agreement to be sure that they have made fully informed
decisions and that all their rights are protected. Sometimes mediators will suggest that
they do this. Mediation can be used in most conflicts ranging from disputes between
consumers and merchants, landlords and tenants, employers and employees, family
members in such areas as divorce, child custody and visitation rights, eldercare and
probate, as well as simple or complex business disputes or personal injury matters.
Mediation can also be used at any stage of the conflict such as facilitating settlements
of a pending lawsuit.

5.3 THE MEDIATOR

Role of the Mediator

The mediator assigned or handling a problem is a trained person. All mediators are
trained to be impartial and fair to all parties involved. Mediators hold all
communications to them in confidence during the mediation process and will not be a
witness for nor against either party in an arbitration hearing or in a court of law.

The mediator manages the process and tries to get the parties to talk to each other.
When the parties are unwilling or unable to talk to one another directly, the mediator
may shuttle between the two parties in order to assist their communications. Shuttle
mediation, however, is more time-consuming.

To aid in the discussions, the mediator may ask questions to gain an understanding of
the issues, help the parties understand the other person's point of view, discuss
weaknesses in the arguments of the parties, or make suggestions to solve the conflict.
The mediator, however, will not make the decisions.

The mediator will not act as such in a dispute in which he or she has at any time acted
as a professional adviser for any party, nor in respect of which he or she is in
possession of any further information which was obtained by the mediator (or any
member of his or her firm) as a result of having so acted or advised; nor having once
acted as a mediator will he or she act for any party individually in relation to the
subject matter of the mediation.

35
 The mediator may meet the parties individually and/or together and may assist the
parties for example, by identifying areas of agreement, narrowing and clarifying areas
of disagreement, and defining the issues; helping the parties to examine the issues and
their available courses of action; establishing and examining alternative options for
resolving any disagreement; considering the applicability of specialised management,
legal, accounting, technical or other expertise and generally facilitating discussion and
negotiation; managing the process and helping them to try to resolve their differences.

5.4 Principles Of Mediation

a) Self-Determination

Mediation respects, values and encourages the participants’ ability to make their own
decisions regarding what process to use, and whether and on what terms, to resolve
their disputes.

Comments

Self-determination is the fundamental principle of mediation that best distinguishes it

from the litigation system. Participants should be free to choose their own dispute
resolution process and are encouraged to make their own decisions on all issues.

Mediation respects the culture, rights, autonomy, and beliefs of the participants.
Mediators should defer their own views to those of the participants, recognizing that
the collaborative interaction between the participants is the key to resolution.

Participants benefit when mediators educate them about the continuum of mediation
techniques and which techniques the mediator practices. Engaging the participants in a
collaborative process to establish expectations surrounding the use of these techniques
may help the participants make an informed decision about the type of mediation best
suited for their particular process.

While a mediator cannot personally ensure that participants are making informed
decisions, mediation works well when each participant is able to understand the
process, issues and options, and is making decisions voluntarily.

Participants often benefit when mediators ask them to consider the benefits of
mediation and agreement, versus the costs of non-participation and impasse.

36
 Participants, who are unable or unwilling to participate effectively in the mediation
process, should be free to suspend or withdraw from the mediation process, even when
mediation is “mandatory.” Mediators should respect a participant’s decision to continue
or end the process.

Mediators may, but should not be expected to suspend, end or withdraw from the
mediation process if they believe one or more of the participants are unable to make
voluntary decisions.

b) Informed Consent.

To fully support self-determination, mediation respects, values and encourages

participants to develop and exercise informed consent throughout the mediation
process. This includes procedural decisions regarding the mediation practitioner or
process, and substantive issues regarding possible resolutions. Informed consent is
supported when mediators make appropriate disclosures about themselves and the
specific mediation process being used initially and throughout the mediation.

Comments

Informed consent is an important part of the participants’ right to self-determination.

Informed consent is supported when mediators disclose or offer to disclose the
information reasonably necessary for informed decisions on whether to use the
mediator and whether to participate in the specific mediation process. Mediators are
encouraged to explain the mediation process and the roles of the mediator, the
participants, their representatives, and others in attendance.

The integrity of the mediation process is supported when mediators disclose

information regarding conflicts of interest, fees, relationships, process competency,
and substantive knowledge, and continue to do so throughout the mediation process.
Mediator disclosures should be truthful and not misleading by omission.

37
Mediators are encouraged to make ongoing, good faith efforts to assess the
participants’ ability to make voluntary choices consistent with their rights of self-
determination and may discontinue the mediation under circumstances manifesting a
participant’s inability to give informed consent. Participants are better able to provide
informed consent and exercise self-determination when they are aware of the
importance of consulting other professionals to assist them. If a participant withdraws
from a multi-participant mediation, the mediation may continue with the informed
consent of the remaining participants, and their understanding that the withdrawing
participant is not bound by any subsequent agreement.

Impartiality

The duty of impartiality of the mediator is inherent in the mediation process. If a

mediator believes that any party is abusing the mediation process, or that power
imbalances are too substantial for the mediation to continue effectively, or that the
parties are proposing a result which appears to be so unfair that it would be a manifest
miscarriage of justice, then the mediator will inform the parties accordingly, and may
terminate the mediation.

Comments

Mediators are encouraged to disclose to the participants’ expressed satisfaction on an

ongoing basis any circumstances that reasonably raise a question as to the mediator’s
ability to demonstrate impartial regard, including actual and potential conflicts of
interest reasonably known to the mediator and any present or prior relationship,
personal or professional, between the mediator and any participant, their
representative or other person in attendance.

Participants may give their informed consent to use a mediator after disclosure of
offer to disclose.

Mediators are encouraged to exercise their independent judgment and not serve when
the mediator’s ability to demonstrate impartial regard is compromised, or appears to
compromise that ability because of the mediator’s personal biases, views, or reactions
to any position, participant, or other person in attendance. Mediators are not advocates
for higher settlement rates. Mediators are encouraged to make reasonable efforts to
explain they are not acting on behalf of or representing any participant. Mediators are
encouraged to advise participants with or without attorneys to seek independent legal
advice and review of any documents prepared by the mediator.

38
 Mediators should make good faith efforts to avoid conflicts of interest in
recommending the services of other professionals.

When a mediator is appointed to mediate, rather than selected by the parties, the
appointing agency or authority should make reasonable efforts to ensure the mediator
demonstrates impartial regard.

c) Confidentiality and privilege

The mediator will conduct the mediation on a confidential basis and will not
voluntarily disclose information obtained through the mediation process except to the
extent that such matter is already public or with the consent of the parties. If, however
the mediator considers from information received in the mediation that the life or
safety of any person is or may be at serious risk, the duty of confidentiality shall not
apply; and in such event the mediator shall try to agree with the person furnishing
such information as to how disclosure shall be made.

Where the mediator meets the parties separately and obtains information from any
party which is confidential to that party and which is not already public, the mediator
shall retain the confidentiality of that information from all other parties except to the
extent that the mediator has been authorized to disclose any such information.

All discussions and negotiations during the mediation will be regarded as evidentially
privileged and conducted on a 'without prejudice' basis, unless such privilege is
waived by the parties by agreement, either generally or in relation to any specific
aspect. No party is to refer in any proceedings that may subsequently take place to
any such privileged discussions and negotiations, or require the mediator to do so, nor
may any party have access to any of the mediator's notes or call any mediator as a
witness in any proceedings.

d) Process and Substantive Competence

Mediators and participants are encouraged to discuss the participants’ expectations

surrounding the desired process and the substantive knowledge, skills, and abilities of
the mediator. Mediators are encouraged to fully and accurately represent their
knowledge, skills, abilities or limitations, in order to satisfy the participant’ reasonable
expectations.

Comments

39
 Mediators are encouraged to exercise their independent judgment when the mediator’s
abilities and/or availability are unlikely to satisfy the participants’ articulated
expectations. When exercising their judgment about mediating a particular dispute,
mediators should consider factors such as the participant-agreed style of mediation, the
complexity and subject matter of the dispute, the specific issues, and the participants
involved.

Mediators should strive to satisfy the reasonable expectations of the participants

concerning process timing by raising issues of undue delay by the participants,
representatives and others in attendance.

Mediators are encouraged to have, maintain and improve the process skills and
substantive knowledge necessary to reasonably satisfy the expectations of the
participants in the matters they mediate.

Mediators should have information relevant to their training, education and experience
available for the participants’ review.

When a court or organization appoints mediators, it should make reasonable efforts to

ensure that each mediator is qualified and the requirements for appearing on a mediator
roster should be available to the public.

e) Good Faith Participation

Participants can improve the mediation process and probability of success when they
participate in good faith. Mediators are encouraged to exercise independent judgment
and withdraw if, in their judgment, a participant’s lack of good faith meaningfully
affects the integrity and fundamental fairness of the process.

Comments

Mediators are not guarantors of the participants’ good faith participation. Mediators are
encouraged to discuss concerns surrounding good faith participation and the resulting
impact on the process in a manner that does not violate confidentiality rules. Mediators
should reveal lack of good faith participation to others only when required by law.

5.5 PROCEDURE FOR MEDIATION

Practical steps in the mediation process.

Step 1- introduction or intakes.

40
The mediator congratulates the parties for having opted for mediation instead of going
to court for litigation or attempting to solve the problem using unlawful means which
would result into more problems. This way the mediator makes the parties feel at ease
and explains the ground rules for the mediation process.

The mediator explains to the parties that his or her role is not to make decision for them
but help them reach an agreement that is acceptable to them all. He or she also explains
to them that he or she will be a neutral party and not take sides and also the importance
of confidentiality at this stage to each party.

Step 2- Telling the story or information gathering.

It is at this stage that each party is given the opportunity to tell their side of the story.
The party bringing the dispute usually tells his or her story first. No interruptions are
allowed while each party is telling their story.

Step 3- Identifying facts and issues.

The mediator tries to identify agreed facts and issues between the parties and also seeks
to identify the needs of each party. This is done by actively listening to each side of the
story and confirming with each side that these are the fact and issues as each party
understands them.

Sometimes the mediator will ask each party to summarize the other party’s perspective
of the problem in order to check for understanding.

Step 4-Identifying alternative solutions.

At this stage, the parties think of possible solutions to the problem. The mediator makes
a list of the suggested solutions and then asks each party to explain his or her feelings
about each possible solution.

Step 5- Revising and discussing solutions.

Based on the feeling of the parties as identified in step 4, the mediator revises possible
solutions and attempts to identify a solution that both parties can agree to.

Step 6-Reaching an agreement.

41
 Out of the solutions suggested by the parties or combination of a number of them with
some possible amendments, the mediator helps the parties arrive at an agreement that is
acceptable to all the parties.

Step 7-Revisng and drafting the final agreement.

The mediator helps the parties re-examine and consolidate the agreement they have
reached or all their different issues, then memorizes the final agreement for review by
the parties and their lawyers.

5.6 The difference between taking a dispute to court and mediation.

Taking a case to court is form of conflict management whereby the conflict is taken to
court for resolution. It means asking the presiding magistrate or judge to make a
decision about a dispute involving two or more parties. Judges or magistrates are
impartial people who arrive at decisions in a dispute based on the evidence presented to
them by the parties in dispute. That though supported by evidence the arguments of
each party must be based on the law.

Mediation on the other hand is a form of conflict management whereby the parties in
the dispute are assisted to arrive at a solution through the assistance of a neutral third
party. The third party that assists the parties in dispute to arrive at a discussion is called
a mediator. The solution to the problem comes from the disputants themselves not from
the mediator. Mediators do not make decisions for the parties or give authoritative
advice as judges and magistrates do in court cases. The mediation agreement centers on
the future.

5.7 THE COURT PROCESS

PROS

i. The judge is impartial and will give a binding decision.

ii. Both the defendant and the plaintiff will be able to tell their stories and call
supporting witnesses.
iii. There are elaborating rules that must be followed to ensure justice.

42
 iv. The judge is an impartial party who will follow the law and make a decision
based on the law.
v. The person who wins the case can get damages as part of the Court’s decision.
vi. There is an established appeal system.

CONS

i. The plaintiff and defendant are forced to deal with past events and not
encouraged to focus on the future.
ii. The plaintiff and the defendant may not be on speaking terms any more when
the proceedings are concluded.
iii. There will not be any agreement on how the parties should behave towards
each other at the end of the case.
iv. One of the parties or actually both may not agree with the judge’s decision.
v. One or both of the parties may not like the idea of how the lawyers handled the
case.
vi. The lawyer’s fees may be high for both the parties.

MEDIATION

PROS

I. The mediator is neutral and objective.

II. The disputes will be able to listen to each other and see the problem as viewed
by the other party.
III. The disputants personally participate in trying to solve the problem.
IV. The disputants will most likely remain on speaking terms.
V. The disputants will be able to view the solution as results of their joint efforts
to work for an amicable solution and not as something imposed from outside.

43
 VI. The process may be less expensive and less time- consuming than going to
court.

CONS

i. The parties must work towards getting a resolution that satisfies both of them.
This can be difficult and time consuming.
ii. The parties must be able to sit together at the same table and discuss the
problem. This can be very difficult in some situations and time consuming.
iii. The parties may feel that the process is not controlled enough and thus their
points not being heard and understood.
iv. The parties may worry about the agreement reached.
v. One party may be more verbal and aggressive making the other party feel that
she /he is being dominated by the other party.

5.8 The role of a lawyer in mediation

A lawyer’s role in mediation is to assist clients, provide practical and legal advice on
the process and on issues raised and offers made, and to assist in drafting terms and
conditions of settlement as agreed.

A lawyer’s role will vary greatly depending on the nature of the dispute and the
mediation process. It may range from merely advising the client before the mediation,
to representing the client during the mediation and undertaking all communications on
behalf of the client.

44
5.9 ETHICAL ISSUES

Confidentiality

As with all dealings with clients, anything that is said or done in a mediation is strictly
confidential. In addition, subject to the requirements of the law and any relevant Rules
of Court, a lawyer must maintain the confidentiality required by the parties and by any
mediation agreement.

COMMENT
a) A lawyer must not disclose any information disclosed during the mediation unless
all parties to the mediation agree, or if required to by law.
b) Without prior permission of the mediator and the other parties a lawyer must not
reveal any information disclosed by the mediator during private sessions to the
other parties or their legal representatives.
c) All information and documents disclosed during the mediation, including any
settlement or draft offers/counteroffers, are confidential and privileged between
parties to the mediation and their legal representatives.
d) A lawyer should consider rules about confidentiality (which may vary from
jurisdiction to jurisdiction) before attending a pre-mediation conference so that
they may be established by the parties and the mediator at the pre-mediation
conference.

Good faith

Lawyers and clients should act, at all times, in good faith to attempt to achieve
settlement of the dispute.

COMMENT

a) A lawyer should advise clients about what it means to act in good faith. A
lawyer should not continue to represent clients who act in bad faith or give
instructions which are inconsistent with good faith.

b) Likewise, if a lawyer suspects the other parties to the mediation are acting in
bad faith this should be raised privately at first with the mediator.

45
5.10 WHEN TO MEDIATE

Timing is an important factor in establishing a framework conducive to settlement.

There is no conclusive rule as to whether, or when, a case is suitable for mediation.
Various factors should be considered, including the nature of the dispute and the
mindsets of the parties.

COMMENT

a) Most cases are suitable for mediation at some point in time. Costs of litigation
are a persuasive factor in favour of mediation.

b) Mediation may be undertaken at any time and should be considered:

I. Before proceedings are commenced;
II. After pleadings have closed, but before the costs of discovery are
incurred;
III. Before an action is set down for trial and trial costs are incurred; and
IV. After a trial and before judgment.

5.11 SELECTING A MEDIATOR

Choosing the right mediator will enhance clients’ settlement prospects in the mediation.

COMMENT

When selecting a mediator:

a) first look to a mediator’s skill and experience as a mediator, and then to any
additional qualifications that may be helpful, such as expertise in the subject matter
of the dispute or law;
b) consider the role of the mediator and whether a particular style of mediation may
be better suited to the dispute.

46
5.12 Preparing For The Mediation

Preparation for mediation is as important as preparing for trial. A lawyer should look
beyond the legal issues and consider the dispute in a broader, practical and commercial
context.

COMMENT
(a) Litigation defines the issues by pleadings. Before mediation, a lawyer should, as
well as assessing the legal merits of the case, consider the dispute in commercial
terms and in the light of the client’s business, personal and commercial needs,
generate possible practical options for resolution.

5.13 Preparing your client

A lawyer’s primary task is to help prepare clients for a mediation by:
(i) Undertaking a risk analysis and linking risks to the client’s interests;
(ii) Explaining the nature of mediation;
(iii) Identifying interests; and
(iv) Developing strategies to achieve final outcomes.
COMMENT
(a) Assist clients to complete a risk analysis. A draft risk analysis may be discussed
with clients and then reviewed with the legal team. A risk analysis will assist in
determining a range of options for settlement.
(b) Discuss and explain the mediation process and role of the mediator to clients. In
particular, discuss issues such as confidentiality and the nature of ‘without prejudice’
negotiations.
(c) Help clients identify positions and interests and the best ways to achieve outcomes.
It is useful to consider the interests of other parties and ways to overcome any tactics
or objections likely to arise.
(d) Decide who will do the talking in the mediation. Often, with appropriate
preparation, clients will be in the best position to convey facts and other non-legal
issues. If so, a lawyer may need to assist clients with preparation for their involvement.

47
5.14 Conference with the mediator

Pre-mediation conferences convened by the mediator are a

good opportunity to establish a relationship with the
mediator and arrange any practical matters relevant to
convening the mediation.

COMMENT
a) The first mediation conference is usually between the lawyers and the mediator
and covers details of the mediation such as the date, time, place, fees, persons
attending, the mediation agreement and documents to be exchanged or brought
to the mediation. Rules about confidentiality must be established and
documented. One option is to agree that confidentiality commences at the time
of the preliminary conference and relates to the entirety of the mediation
process from that time, including correspondence and post-mediation reporting
requirements.

b) A second preliminary conference can take place immediately before the

mediation at which the mediator can meet individually with the parties and their
lawyers. This conference enables the mediator to establish a relationship with
clients, explain the process, format and structure of the mediation, and answer
any questions before the mediation commences.

48
5.15 AT THE MEDIATION

Mediation is not an adversarial process to determine who is right and who is wrong.
Mediation should be approached from an interest’s perspective as a problem-solving
exercise. A lawyer’s role is to help clients to best present their case and assist clients
and the mediator by giving practical and legal advice and support.

Skills

The skills required for a successful mediation are different to those desirable in
advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the
client on the other side of the table. A lawyer who adopts a persuasive rather than
adversarial or aggressive approach, and acknowledges the concerns of the other side, is
more likely to contribute to a better result.

COMMENT
a) Arguments should be presented in appropriate terms and language that is
appealing to the other party. Legal arguments or language are not always
necessary.

b) Listening carefully, even to material which may be irrelevant to litigation, is

conducive to setting an atmosphere for settlement. It is helpful to summarise
arguments made against clients to show that the other party’s position has been
heard and understood.

5.16 Offers and settlement

A primary aspect of a lawyer’s role is to help formulate offers, assess the

practicality/reasonableness of offers made by other parties and assist in drafting
settlement terms and conditions.

COMMENT
a) Never mislead and be careful of puffing.
b) Be cautious about making a ‘final offer’ or delivering ultimatums which can limit
future options and damage credibility for future negotiations
c) If possible, bring a draft settlement agreement to the mediation, or at least have a
draft available on-line.
d) If it appears that the mediation will not produce a full settlement, try to obtain a
written agreement on as many issues as possible. This may advance future
49
negotiations or shorten a trial and leaves parties feeling like they have at least
achieved something useful. It is also useful for future purposes to draft a list of
issues on which agreement has not been reached.

50
5.17 POST-MEDIATION.

Generally, lawyers should report on mediations in writing to clients. Lawyers may also
need to address with clients (before the mediation) any reporting obligations the
mediator may have to courts, government departments or other organizations.

COMMENT

a) A lawyer should be aware of any post-mediation reporting obligations (which

may vary from jurisdiction to jurisdiction) before attending a pre-mediation
conference.

b) A lawyer should address, with the mediator and with the other parties, any
objections clients may have to the scope of what is reported by the mediator.

NB: students should carry out a roleplay on conducting mediation. The practical
scenario will be shared with students during the workshop week.

6. METHOD 3: CONCILIATION

6.1 Definition

Conciliation in Uganda is also provided for under The Arbitration and Conciliation Act
and can be defined as a process in which an independent third party or neutral person
assists the parties to settle their difference but may, if necessary, deliver his or her
opinion to the merits of the dispute. Conciliation is a less frequently used form of
Alternative Dispute Resolution and is often used interchangeably and indiscriminately
with mediation. The Conciliator's role is to guide the parties to a settlement. Section 4
of the Arbitration and Conciliation Act further provides that a conciliator may be
required to make a recommendation as to how the dispute should be settled if an
agreement cannot be reached by the parties during the process. The parties must
however decide in advance whether they will be bound by the Conciliator's
recommendations for settlement. The parties generally share equally in the cost of the
conciliation.

6.2 About the conciliation process

The role of conciliators is similar to that of mediators except that the conciliator may
also:

51
 a) have specialist knowledge and give you some legal information
b) suggest or give you and the other participants expert advice on the possible options
for sorting out the issues in your dispute
c) actively encourage you and the other participants to reach an agreement.

6.3 The conciliator will not:

a) take sides or make decisions
b) tell parties what decision to make, although they may make suggestions
c) provide counselling.

Conciliation is usually held face to face, so that you can talk to each other directly.
However, you may also have separate sessions with the conciliator. Sometimes the
conciliator can act as a 'messenger' by talking to you and the other participants separately
and communicating ideas or proposals between you. It is also possible to hold
conciliation sessions by telephone in some circumstances.

6.4 When is conciliation suitable?

Conciliation is likely to be suitable if the parties:

a) want to reach an agreement on some technical and legal issues
b) want assistance with the process
c) want to make the decision with the other participants involved
d) want advice on the facts in your dispute.

conciliation may also be suitable if parties have tried mediation and still cannot reach
agreement with the other participants.

6.5 What role do lawyers or experts play?

The participants' lawyers can usually be present during conciliation. In some cases,
experts may also be present. Some conciliation processes do not require lawyers to
participate. If parties wish to have lawyers participate in a conciliation process or have
experts attend, parties should discuss this with the conciliator before the process begins.

6.6 Principles of Procedure

a) Independence and impartiality

52
 The conciliator should be independent and impartial. He should assist the parties in an
independent and impartial manner while he is attempting to reach an amicable settlement
of their dispute.
b) Fairness and justice
The conciliator should be guided by the principles of fairness and justice. He should take
into consideration, among other things, the rights and obligations of the parties, the
usages of the trade concerned, and the circumstances surrounding the dispute, including
any previous business practices between the parties.

c) Confidentiality

The conciliator and the parties are duly bound to keep confidential all matters relating to
conciliation proceedings. Similarly, when a party gives information to the conciliator on
the condition that it be kept confidential, the conciliator should not disclose that
information to the other party.

d) Disclosure of the information

When the conciliator receives any information about any fact relating to the dispute from
a party, he should disclose the substance of that information to the other party. The
purpose of this provision is to enable the other party to present an explanation which he
might consider appropriate.

e) Co-operation of the parties with Conciliator.

The parties should in good faith cooperate with the conciliator. They should submit the
written materials, provide evidence and attend meetings when the conciliator requests
them for this purpose.

6.7 Conciliation Procedure

a) Party to the dispute can commence the conciliation process.

b) When one party invites the other party for resolution of their dispute through
conciliation, the conciliation proceedings are said to have been initiated. When the
other party accepts the invitation, the conciliation proceedings commence. If the other
party rejects the invitation, there are no conciliation proceedings for the resolution of
that dispute.

c) Generally, only one conciliator is appointed to resolve the dispute between the parties.
The parties can appoint the sole conciliator by mutual consent. If the parties fail to
arrive at a mutual agreement, they can enlist the support of any international or
53
 national institution for the appointment of a conciliator. There is no bar to the
appointment of two or more conciliators.

d) In conciliation proceedings with three conciliators, each party appoints one

conciliator. The third conciliator is appointed by the parties by mutual consent. Unlike
arbitration where the third arbitrator is called the Presiding Arbitrator, the third
conciliator is not termed as Presiding conciliator. He is just the third conciliator. The
conciliator is supposed to be impartial and conduct the conciliation proceedings in an
impartial manner. He is guided by the principles of objectivity, fairness and justice,
and by the usage of the trade concerned and the circumstances surrounding the
dispute, including any previous business practices between the parties.

e) The conciliator is not bound by the rules of procedure and evidence. The conciliator
does not give any award or order. He tries to bring an acceptable agreement as to the
dispute between the parties by mutual consent. The agreement so arrived at is signed
by the parties and authenticated by the conciliator. In some legal systems, the
agreement so arrived at between the parties resolving their dispute has been given the
status of an arbitral award. If no consensus could be arrived at between the parties and
the conciliation proceedings fail, the parties can resort to arbitration.

f) A conciliator is not expected to act, after the conciliation proceedings are over, as an
arbitrator unless the parties expressly agree that the conciliator can act as arbitrator.
Similarly, the conciliation proceedings are confidential in nature. Rules of
Conciliation of most of the international institutions provide that the parties shall not
rely on or introduce as evidence in arbitral or judicial proceedings, (a) the views
expressed or suggestions made for a possible settlement during the conciliation
proceedings; (b) admissions made by any party during the course of the conciliation
proceedings; (c) proposals made by the conciliator for the consideration of the parties;
(d) the fact that any party had indicated its willingness to accept a proposal for
settlement made by the conciliator; and that the conciliator shall not be produced or
presented as a witness in any such arbitral or judicial proceedings.

g) Conciliation has received statutory recognition as it has been proved useful that
before referring the dispute to the civil court or industrial court, efforts to concile
between the parties should be made. It is similar to the concept of court-annexed
mediation.

54
6.8 Advantages of resolution of a dispute by conciliation

In contrast to arbitration, conciliation is nonbonding and confidential. If successful,

conciliation results in a settlement of the dispute. Like arbitration, conciliators are
selected by and serve at the expense of the parties. Conciliation is less formal than
arbitration, but is more evaluative than the facilitative process of most forms of
mediation. Conciliators may be retired judges, senior advocates, or non-lawyers with
expertise in the subject matter. The court plays no formal role in sponsoring
conciliation. Conciliation is becoming increasingly popular, as an alternative to other
formal and informal modes of dispute resolution due to its obvious advantages:

a) It offers a more flexible alternative, for a wide variety of disputes, small as well
as large;

b) It obviates the parties from seeking recourse to the court system;

c) It reserves the freedom of the parties to withdraw from conciliation without

prejudice to their legal position inter se at any stage of the proceedings;

d) It is committed to maintenance of confidentiality throughout the proceedings

and thereafter, of the dispute, the information exchanged, the offers and counter
offers of solutions made and the settlement arrived at.

e) It is cost-effective and produces quicker resolution of dispute.

f) It facilitates the maintenance of continued relationship between the parties even

after the settlement or at least during the period of settlement is attempted at.
This feature is of particular significance to the parties who are required to
continue their relationship despite the dispute, as in the case of disputes arising
out of construction contracts, family relationships, family properties or disputes
between members of any business or other organizations;

g) There is no scope for corruption or bias.

6.9 Termination of proceedings on settlement

55
As and when the parties reach an amicable settlement on the disputes which had been
referred to the conciliator, and a duly authenticated copy (by the conciliator) of the
settlement agreement is handed over to the parties, the conciliation proceedings shall
stand terminated on that date. There is no provision in the Act for review of the
settlement agreement, nor there do any provision under which any of the parties to the
settlement agreement can retrace its steps and wriggle out of the written commitments
in the form of a settlement agreement. A conciliation proceeding comes to an end and
stands terminated if any of the following condition is fulfilled; on signing of the
settlement agreement by the parties or If no settlement of dispute is arrived at in any of
the following manner-

a) By a written declaration of the conciliator that further efforts at conciliation are

no more justified.

b) By joint written declaration of the parties that the conciliation proceedings are
terminated.

c) By the declaration of either party to other party and conciliator, that conciliation
proceeding is terminated.

d) It is open to the parties to terminate conciliation proceedings at any time before

settlement.

The conciliation proceedings can also be terminated:

a) When the conciliator declares, after consultation with the parties, that any
further exercise on conciliation shall be an exercise in futility; or

b) When the parties jointly request the conciliator;or

c) When one party communicates to the other, with a copy to the conciliator, that
no more efforts be made in the conciliation matter.

There is no bar on the number of times the efforts for conciliation can be made.
Termination of conciliation proceedings can by no means be taken to be the end of the
conciliation efforts for all times to come.

56
7. METHOD 5: ARBITRATION

7.1 What is arbitration?

Arbitration is a consensual dispute resolution process based on the parties' agreement to

submit their disputes for resolution to an arbitral tribunal usually composed, of one or
three independent arbitrators appointed by or on behalf of the parties. Arbitration is
probably the best-known form of alternative dispute resolution, and is a formal, binding
process where the dispute is resolved by the decision of a nominated third party, the
arbitrator. In arbitration, the award is enforceable across international boundaries.
Being a private process, confidentiality is one of the features that attracts many parties
to use it. Arbitration is often much faster than litigation, and can be less expensive. In
addition, the parties can choose their arbitrator; therefore in a particular type of dispute,
an arbitrator may be chosen for their special skill and expertise. Arbitration is a legal
technique for the resolution of disputes outside the courts, where the parties to a dispute
refer it to one or more persons (the "arbitrators", "arbiters" or “arbitral tribunal”"), by
whose decision (the “award”) they agree to be bound. It is a resolution technique in
which a third party reviews the evidence in the case and imposes a decision that is
legally binding for both sides and enforceable.

It is a dispute resolution process where the opposing parties select or appoint an

individual called an Arbitrator. Upon appointment, the Arbitrator will arrange the
process to hear and consider the evidence, review arguments and afterwards will
publish an award in which the items of dispute are decided. It’s a voluntary submission
of disputes not to a court but to a person or tribunal chosen by the parties or another
third party chosen by an institution and such appointment may be done with the parties
consent in a contract or a specific arbitration clause or a compromise or a submission
clause.

57
 Arbitration is thus closer to court proceedings than ADR. Indeed, one Author has
referred to arbitration as a judicious way of settling disputes owing to the judicial
characteristics or nature of such process. 1 Arbitration is often used for the resolution
disputes, like commercial disputes, particularly in the context of International
Commercial Transactions. The use of arbitration is also frequently employed in
consumer and employment matters, where arbitration may be mandated by the terms of
employment or commercial contracts.

An arbitration is conducted in accordance with the terms of the parties' arbitration

agreement which are often found in the provisions of a commercial contract or
applicable investment treaty. Arbitration is known for its procedural flexibility, which
allows parties to engage in an efficient, confidential and fair process leading to a final,
binding and enforceable award.

7.2 Arbitrability of a dispute in Uganda.

A dispute is considered non-arbitrable in Uganda where it offends the public policy

of Uganda or where a particular law provides a specific mechanism for dispute
resolution. Section 34(2)(b) of the Arbitration and Conciliation Act empowers the
court to set aside arbitral awards where the subject matter is not capable of
settlement by arbitration under the law of Uganda or where the award conflicts
with the public policy of Uganda.

1
Allan Redfern and M. Hunter. Law and practice of international commercial Arbitration. London sweet and
maxwell.3rd ED.1999 AT P.476 Para.23 005

58
High Court of Uganda in the case of Arbitration Cause No. 04 of 2022 - Smile
Communications Uganda Limited -versus- ATC Uganda Limited noted that a claim
may be considered non-arbitrable if it falls outside the scope of the parties’
arbitration agreement or if no arbitration agreement as such was ever formed or, if
formed, is nevertheless invalid under the applicable law. According to the above
decision, a matter is considered to be non-arbitrable if mandatory laws provide that
certain issues are to be decided only by courts. Common examples of non-arbitrable
matters include certain categories of disputes of a criminal nature, disputes relating
to rights and liabilities which give rise to or arise out of criminal offences;
matrimonial disputes relating to divorce, judicial separation, restitution of conjugal
rights, child custody; guardianship matters; insolvency and winding up matters;
testamentary matters (grant of probate, letters of administration and succession
certificate); and eviction or tenancy matters governed by special statutes where the
tenant enjoys statutory protection against eviction. In the same vein, matters
relating to special rights or liabilities which are (i) created under a statute; or (ii)
the determination of which lies within the exclusive jurisdiction of specific courts or
tribunals (other than regular civil courts), are not arbitrable. The Court also
recognized a second category of non-arbitrable disputes, namely, actions for
enforcement of rights in rem, which are unsuited for arbitration and can only be
adjudicated by courts or public tribunals. In the case of Civil Appeal 14 of 2011;
Heritage Oil & Gas Ltd -versus- Uganda Revenue Authority, the Court held that the
reference of a tax dispute to international arbitration would be improper. In the case of
Civil Appeal No. 12 of 2004; Rabbo Enterprises (U) Ltd -versus- Uganda Revenue
Authority, the Supreme Court confirmed the supremacy of the Tax Appeals Tribunal as
the forum with original jurisdiction to hear tax disputes, in line with Article 152(3) of the
Constitution of Uganda.

Generally, in practice, non-arbitrable matters include tax disputes, criminal matters, land
disputes regarding fraud, family and divorce matters, constitutional disputes and matters
where a statute specifically provides for a dispute resolution mechanism other than
arbitration. Generally, in practice, non-arbitrable matters include tax disputes, criminal
matters, land disputes regarding fraud, family and divorce matters, constitutional
disputes and matters where a statute specifically provides for a dispute resolution
mechanism other than arbitration.

59
 Arbitration in Uganda is governed by the Arbitration and Conciliation Act Chapter 4
Laws of Uganda (“ACA”) which applies to both domestic and international arbitration.
It is modelled on the UNCITRAL Model Law on International Commercial Arbitration
and the UNCITRAL Rules of Arbitration. Parts III and IV of the ACA incorporate the
application of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (“New York Convention”) and the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (ICSID). In general terms,
Ugandan courts respect the mandatory requirement for arbitration to be strictly adhered
to where parties provide for it in their agreements. Secondly, Ugandan Courts have also
been receptive in recognizing and enforcing international awards pursuant to the
Arbitration and Conciliation Act (ACA) which is the principal legislation governing
enforcement of arbitral award.

7.3 Types of Arbitration

Arbitration is classified as adhoc or institutional, domestic, or international.

Ad Hoc Arbitration: Ad hoc arbitrations are arranged solely between the arbitrators
and the parties. The parties must envisage and advance the arbitration procedure
themselves under the supervision of the tribunal. The parties may choose to adopt a
ready-made set of arbitration rules (such as the UNCITRAL Rules of Arbitration) or the
proceedings may be conducted in accordance with a set of bespoke rules, drawn up by
the parties specifically for that particular case.

Adhoc arbitration is that arbitration where the parties themselves prescribe the mode of
appointment of the arbitrator, who upon being appointed controls the proceedings
within the limits laid down by the parties and within the limits allowed by the law, the
parties are allowed to stipulate the rules of procedure in their arbitration agreement.
This may be done by incorporating the rules of an arbitration institution such as those
of the international chamber of commerce or CADER (center for Arbitration and
Dispute Resolution) of Uganda.

Institutional arbitration on the other hand is a type of arbitration where the

arbitrations are administered by an arbitration institution such as ICAMEK, LCIA,
ICC, HKIAC. Typically, proceedings are conducted under the arbitration rules selected
by the parties which have been drafted by the chosen institution, which establish the
parameters of the procedure, from the submission of the notice of arbitration to the
issuance of the award.

60
 The proceedings are conducted and concluded in accordance with the rules of either an
international or national arbitration body which also takes over either wholly or
partially, the administration of the arbitration.

Arbitration can be either voluntary or mandatory (although mandatory arbitration can

only come from a statute or from a contract that is voluntarily entered into, where the
parties agree to hold all existing or future disputes to arbitration, without necessarily
knowing, specifically, what disputes will ever occur) and can be either binding or non-
binding. Non-binding arbitration is similar to mediation in that a decision cannot be
imposed on the parties. However, the principal distinction is that whereas a mediator
will try to help the parties find a middle ground on which to compromise, the (non-
binding) arbitrator remains totally removed from the settlement process and will only
give a determination of liability and, if appropriate, an indication of the quantum of
damages payable. By one definition arbitration is binding and so non-binding
arbitration is technically not arbitration

Arbitration provides several important benefits for participants. It is typically:

Less formal: parties to an arbitration benefit from less formal rules of procedure and
evidence than do litigants. Each side will have the opportunity to tell its story without
the limitations that strict rules of procedure and evidence can impose. The parties can
decide to be represented by legal counsel or they can represent themselves.

Less expensive: the expenses involved in the process are limited due to the shorter
period for dispute resolution.

Less time consuming: the backlog of civil court cases in the different courts of several
jurisdictions is well documented. Arbitrations often occur much more quickly and
allow the parties to proceed with a definitive resolution to their conflict; there is no
backlog, as hearings are scheduled as soon as the parties and the arbitrator are
available.

Arbitration is a popular form of alternative dispute resolution (ADR) with good

reason. The benefits described above provide parties with an easier, faster and less
expensive way to resolve their disputes and to continue on with their business
objectives. Therefore, it is important to consider including an arbitration clause in your
business and employment contracts or any other form of contract.

7.4 The main advantages of arbitration can be summarized as follows:

61
Neutrality: Parties are free to choose a neutral arbitral venue when drafting their
arbitration clause. Also, once a dispute has arisen, parties have the ability to appoint
independent arbitrators of their choice to form a neutral tribunal.

Flexibility: Arbitration permits the parties to agree on the procedures they wish to
apply to their arbitration.

Time and cost-efficiency: Due to the flexibility and finality of arbitration proceedings,
resolving disputes through arbitration may often be quicker and cheaper than resolution
through court litigation or other means of dispute resolution.

Confidentiality: Arbitration hearings are conducted in private and awards are, under
normal circumstances, not published. Therefore, disputes will not be revealed to the
public and where possible business relationships can be maintained.

Enforceability: Enforcement of foreign court judgments can be difficult in the absence

of an appropriate bilateral treaty. Under the New York Convention signed by more than
150 jurisdictions, each of the Convention parties undertake to recognise and enforce
arbitral awards made in other signatory countries.

Final and Binding: Arbitration awards are usually final and not subject to review on the
merits, meaning prolonged court appeal procedures can generally be avoided.

62
7.5 Who is an Arbitrator?

The arbitrator is the person (or persons) assigned to review the facts of the case. In
most cases, the judge handling the case will offer a list of arbitrators from which to
choose. Both parties must agree to the arbitrator. Arbitrators tend to be lawyers or
retired judges. The arbitrators are paid a fee for their services from the disputing
parties.

7.6 What role does the arbitrator have?

The function of the arbitrator is similar to judge in court. The arbitrator must listen to
and read the evidence presented during the arbitration hearing, make rulings on such
things as procedure and listen to the arguments presented by each of the parties at the
end of the evidence. Ultimately, the arbitrator must make a decision concerning the
issues in dispute. Arbitrators listen to the evidence presented by each side and render a
decision in writing called an "award." The arbitrator must disclose to the parties any
conflict of interest or potential conflict that might affect his or her impartiality in the
case.

63
7.7 Skills of an arbitrator.

An arbitrator should possess special expertise such as a lawyer or former judge,

engineers, architect. In almost all instances, arbitrators must state the rationales for
their decisions, and if challenged, judges review the award. This helps him or her to
adjudicate questions of comparative law, conflicts of laws and statutory interpretation
more often than one might expect. Such an arbitrator with a formal legal education and
actual legal experience exponentially increases the likelihood that an arbitrator can
handle complex questions of law responsibly because his or her legal background
significantly affects the arbitral proceeding and the remedies that may be granted.

An arbitrator should have the skill of impartiality, an arbitrator should have no

business, familial, or social relationships with the parties and can neither gain nor lose a
material benefit from the outcome of the dispute.

Closely related to the topic of communicative skill, management know-how ranks high
on the list of desirable characteristics in any good arbitrator. Such skill includes the
ability to “tread the very thin line between laxity and undue delay on the one hand and
dictatorial, unreasonable demands on the other. Without such management expertise,
the speed and cost-effectiveness typically associated with arbitration cannot be realized.

An arbitrator’s communicative style functions as a primary tool for listening to the

parties, synthesizing their respective positions, and obtaining satisfactory results.
Arbitrators Must put forth arguments; pose questions that parties may not want to
answer Forthrightly, make decisions that the parties may not favor, and articulate each
of these in a persuasive manner. so Serious communication on the part of an arbitrator
must be other-oriented. Since arbitration involves people from different legal
backgrounds, from different societies, and obviously with different interests, an
arbitrator cannot simply pull other-oriented communication practices out of thin air.

64
 A good arbitrator should know how to manage the case backlog, as basic as this factor
may seem, it warrants a friendly reminder. Well-known arbitrators schedule matters
several months in advance. When the arbitrator’s caseload grows to mammoth
proportions, it can effectively thwart a party’s ability to obtain a speedy resolution —
one of the more attractive characteristics of arbitration. Remember, so since parties in
an arbitration need to iron out multiple issues in advance, such as arbitrator selection
procedures, whether a given arbitrator appears sufficiently neutral, or which (if any)
arbitral institution to use. Each of these considerations requires careful negotiation and
time. Scheduling conflicts will delay the process even further. So any good arbitrator
should be able to Measure the time sensitivity of the case, and consider whether the
passage of time will sweeten or sour the dispute.

7.8 The Process for arbitration

Arbitration proceedings have a reasonable amount of leeway in how they are handled.
Usually, the arbitrator will review the facts of the case and interview the main parties
and any witnesses or individuals who can help clarify the arguments of either side.
These interviews are performed under oath. Lawyers from each side have the
opportunity to question the witnesses, just as in a full trial.

Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator

controls the process, will listen to both sides and make a decision. Like a trial, only one
side will prevail. Unlike a trial, appeal rights are limited.

In a more formal setting, the arbitrator will conduct a hearing where all of the party’s
present evidence through documents, exhibits and testimony. The parties may agree to,
in some instances establish their own procedure, or an administrating organization may
provide procedures. There can be either one arbitrator or a panel of three arbitrators. An
arbitration hearing is usually held in offices or other meeting rooms.
The result can be binding if all parties have previously agreed to be bound by the
decision. In that case, the right to appeal the arbitrator's decision is very limited. An
arbitrator's award can be reduced to judgment in a court and thus be enforceable. In
non-binding arbitration, a decision may become final if all parties agree to accept it or
it may serve to help you evaluate the case and be a starting point for settlement talks.

7.9 Stages of the arbitral procedure

65
a) Arbitration clause or arbitration agreement
During the drafting of any contract, the parties may add an arbitration clause in the
contract, the clause should state that in the future, if any disputes arise among the
parties then, in that case, they can resolve it through the arbitration process. During the
drafting of an arbitration clause in the contract, the person who is drafting needs to be
very careful to make the clause in a detailed manner and ensure every possibility in
which the disputes can be raised out of contract or due to the relation of the contract. In
the event that the parties do not have an arbitration clause in the contract, the parties at
that point can make an arbitration agreement, but it should be with their mutual
consent, in order to solve the disputes arising out of the previous contract.

66
b) Notice of arbitration
The dispute among the party commences on that particular date on which a request
for the dispute as referred to arbitration is received by the respondent. From the date
the respondent has received the legal notice to the date of completion of the fixed
period given in the notice, the parties must give a reply to the notice.

c) Appointment of arbitrators
Parties are free to agree on any number of arbitrators, however, the number of
arbitrators should not be in the even number. In case parties fail to decide
arbitrators, then under that circumstance the arbitral tribunal shall consist of a sole
arbitrator.
The cardinal principle of the Arbitration and Conciliation Act is that the parties are
free to agree on the number of arbitrators. However, it must be an odd number. If
the circumstances are as such in which the parties are unable to agree on the
procedure prescribed or are not able to form the arbitral tribunal with their mutual
satisfaction. Parties mutually decide on the matter of the appointment of arbitrators.
The parties to the arbitration agreement or clause must mention the name of the
concerned arbitrator who will resolve the dispute. In case the parties fail to decide
mutually on the appointment of the arbitrator then under those circumstances, the
parties must move to the court and request for the appointment of an arbitrator or
move the appointing authority indicated in the arbitration agreement (if any)

d) Statement of claim
Within the time period that is fixed by the parties or the arbitral law, the claimant
must state supporting facts about his claim, the point of issue and relief. The parties
need to submit their statement of claim which should be accompanied by all the
documents that must be supported by the relevant facts and the issues of the
arbitration. It is pertinent to note that the claim can be changed if the parties agree
to it, then they can alter or change the claim during the arbitral proceeding or unless
the arbitral tribunal considers the claim to be inappropriate.

e) Hearing of parties
Steps that are involved during the process of hearing of the parties:

I. Preliminary hearing and exchange of information stage

After the arbitrator is appointed and is confirmed, the preliminary hearing of the
arbitration proceeding begins in which the parties call their arbitrator so that the
schedule can be fixed. During the preliminary meeting, primarily the issues of the
67
 dispute are addressed, and then the exchange of information is done among the
parties and the next hearing date is scheduled. On the next date which was
scheduled, the arbitrator will issue a written document commonly known as a
‘scheduling order.’ or “Procedural Order”.

II. Stage of hearing

At this stage, the case is presented to the arbitrators by the parties. This process
can either take place in person, or can be virtual, or by submitting the written
documents or arbitration agreements and applicable rules that govern the case.
Parties need to submit written arguments after hearings, as directed by the
arbitrator.

III. Award stage

After the hearing is completed, and the arbitrator determines that no more
evidence will be presented, then in that condition the hearing is closed and a date
is fixed when the award will be issued.
An arbitral award is considered as a final order which is given by the arbitrator.
The award can either be in terms of monetary relief by one party or by other
parties. Also an award can be a non-financial one such as adding the incentives of
employment or stopping the business practices.

Essentials of the award

Essentials of the award given in an arbitral proceeding –
 The award must be in written form and duly signed either by the majority or
by all.
 The date and place of the award should be mentioned.
 The reason for the decision must be mentioned in the award, except when
parties have agreed that there is no need to give that reason or when there is
a mutual settlement during the proceeding which is recorded as an award.
 The arbitral award should be certain and the final award must not be vague,
uncertain and ambiguous.

7.10 Laws Applicable

68
 States regulate arbitration through a variety of laws. The main body of law applicable
to arbitration is normally contained either in the national Private International Law or
in a separate law on arbitration (as is the case in England). In addition to this, a number
of national procedural laws may also contain provisions relating to arbitration.

In Uganda, arbitration is governed by The Arbitration and Conciliation ACT 2000 and
by far the most important international instrument in arbitration law is the 1958 New
York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Some
other relevant international instruments are:

The Geneva Protocol of 1923

The Geneva Convention of 1927

The Washington Convention of 1965 (governing settlement of international investment

disputes)

The UNICITRAL Model law (providing a model for a national law of arbitration)

The UNICITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)
as revised in 2010

New York Convention

7.11 Advantages and disadvantages of Arbitration

Parties often seek to resolve their disputes through

arbitration because of a number of perceived potential
advantages over judicial proceedings:
● when the subject matter of the dispute is highly technical, arbitrators with an
appropriate degree of expertise can be appointed (as one cannot "choose the
judge" in litigation]
● arbitration is often faster than litigation in court
● arbitration can be cheaper and more flexible for businesses
● arbitral proceedings and an arbitral award are generally non-public, and can be
made confidential
● in arbitral proceedings the language of arbitration may be chosen, whereas in
judicial proceedings the official language of the country of the competent court
will be automatically applied
69
 ● As a result of the provisions of the New York Convention 1958, arbitration
awards are generally easier to enforce in other nations than court judgments
● in most legal systems there are very limited avenues for appeal of an arbitral
award, which is sometimes an advantage because it limits the duration of the
dispute and any associated liability

7.12 Some of the disadvantages include

● arbitration may become highly complex

● arbitration may be subject to pressures from powerful law firms representing the
stronger and wealthier party
● arbitration agreements are sometimes contained in ancillary agreements, or in
small print in other agreements, and consumers and employees often do not know
in advance that they have agreed to mandatory binding pre-dispute arbitration by
purchasing a product or taking a job
● if the arbitration is mandatory and binding, the parties waive their rights to access
the courts and to have a judge or jury decide the case
● in some arbitration agreements, the parties are required to pay for the arbitrators,
which adds an additional layer of legal cost that can be prohibitive, especially in
small consumer disputes
● in some arbitration agreements and systems, the recovery of attorneys' fees is
unavailable, making it difficult or impossible for consumers or employees to get
legal representation; however, most arbitration codes and agreements provide for
the same relief that could be granted in court
● if the arbitrator or the arbitration forum depends on the corporation for repeat
business, there may be an inherent incentive to rule against the consumer or
employee
● there are very limited avenues for appeal, which means that an erroneous decision
cannot be easily overturned
● although usually thought to be speedier, when there are multiple arbitrators on the
panel, juggling their schedules for hearing dates in long cases can lead to delays
● in some legal systems, arbitrary awards have fewer enforcement options than
judgments; although in the United States arbitration awards are enforced in the
same manner as court judgments and have the same effect
● arbitrators are generally unable to enforce interlocutory measures against a party,
making it easier for a party to take steps to avoid enforcement of member or a

70
 small group of members in arbitration due to increasing legal fees, without
explaining to the members the adverse consequences of an unfavorable ruling
● rule of applicable law is not necessarily binding on the arbitrators, although they
cannot disregard the law
● discovery may be more limited in arbitration or entirely nonexistent
● the potential to generate billings by attorneys may be less than pursuing the
dispute through trial
● Unlike court judgments, arbitration awards themselves are not directly
enforceable. A party seeking to enforce an arbitration award must resort to judicial
remedies, called an action to "confirm" an award
● Although grounds for attacking an arbitration award in court are limited, efforts to
confirm the award can be fiercely fought, thus necessitating huge legal expenses
that negate the perceived economic incentive to arbitrate the dispute in the first
place.

71
7.13 Drafting Arbitration agreement
Under Section 3 of the ACA, an arbitration agreement is required to be in writing
regardless of whether it is contained in a parent contract as an arbitration clause or a
submission agreement separate from the main contract from which a dispute has arisen.
This is elaborated to mean that it must be contained either in a document signed
by the parties or an exchange of letters, a telex, a telegram or other means of
telecommunications providing a record of the agreement. In determining validity
and enforceability of an arbitration agreement, the courts will look at both the formal
and substantive validity of the arbitration agreement based on the test laid out in
Section 5(1) of the ACA. The law further provides that an arbitration agreement should
be signed by the parties regardless of whether it is contained in a parent contract as an
arbitration clause or a submission agreement.

A valid arbitration agreement will be enforced provided it is not null and void,
inoperative or incapable of being performed. In the case of HCMA No. 924 of 2013;
British American Tobacco Uganda Ltd -vs- Lira Tobacco Stores, the Court held that its
only consideration in deter mining a reference to arbitration is whether the arbitration
agreement is null and void, inoperative or incapable of being performed, or whether
there is a dispute to be referred to arbitration. Under Section 16(1) of the ACA,
arbitration clauses forming part of a contract are required to be treated as a
separate agreement independent of other terms of the contract. This provision
codifies the doctrine of separability where an arbitration clause may be considered
valid even if the rest of the contract in which it is contained is invalid. Section 16(1) of
the ACA not only recognises that an arbitration clause is independent of the contract,
but it also provides that an arbitration clause is not invalidated by a contract that is null
and void.

Arbitration is a consensual process; a party cannot be forced to arbitrate a dispute

unless he agrees to do so. In practice, however, many fine-print arbitration agreements
are inserted in situations in which consumers and employees have no bargaining power.
Moreover, arbitration clauses are frequently placed within sealed users' manuals within
products, within lengthy click-through agreements on websites, and in other contexts in
which meaningful consent is not realistic. Such agreements are generally divided into
two types:

Agreements which provide that, if a dispute should arise, it will be resolved by

arbitration. These will generally be normal contracts, but they contain an arbitration
clause.
72
agreements which are signed after a dispute has arisen, agreeing that the dispute should
be resolved by arbitration (sometimes called a "submission agreement").

The former is the far more prevalent type of arbitration agreement. Sometimes, legal
significance attaches to the type of arbitration agreement. For example, in certain
commonwealth countries, it is possible to provide that each party should bear their own
costs in a conventional arbitration clause, but not in a submission agreement. In
keeping with the informality of the arbitration process, the law is generally keen to
uphold the validity of arbitration clauses even when they lack the normal formal
language associated with legal contracts.

The courts have also upheld clauses which specify resolution of disputes other than in
accordance with a specific legal system. These include provision indicating: that the
arbitrators "must not necessarily judge according to the strict law but as a general rule
ought chiefly to consider the principles of practical business" "internationally accepted
principles of law governing contractual relations" Agreements to refer disputes to
arbitration generally have a special status in the eyes of the law. As an example, in
disputes on a contract, a common defence is to plead the contract is void and thus any
claim based upon it fails. It follows that if a party successfully claims that a contract is
void, then each clause contained within the contract, including the arbitration clause,
would be void. However, in most countries, the courts have accepted that: a contract
can only be declared void by a court or other tribunal; and if the contract (valid or
otherwise) contains an arbitration clause, then the proper forum to determine whether
the contract is void or not, is the arbitration tribunal.

Arguably, either position is potentially unfair; if a person is made to sign a contract

under duress, and the contract contains an arbitration clause highly favorable to the
other party, the dispute may still be referred to that arbitration tribunal, conversely a
court may be persuaded that the arbitration agreement itself is void having been signed
under duress. However, most courts will be reluctant to interfere with the general rule
which does allow for commercial expediency; any other solution (where one first had
to go to court to decide whether one had to go to arbitration) would be self-defeating.

Model Arbitration Clause or Separate Arbitration Agreement (Uncitral Model Law).

‘Any dispute, controversy or claim arising out of or relating to this contract, or
breach, termination or invalidity thereof, shall be settled by arbitration in
accordance with the UNICTRAL Arbitration Rules as present in force’. Parties may
wish to consider adding:
73
 A] The appointing authority shall be…………………… (Name of institution or
person);
B] The number of arbitrators shall be …………………... (One or three)
c] The place of arbitration shall be……………………… (Town or country)
d) The language(s) to be used in the arbitral proceedings shall be…………….

7.14 Challenges

Generally speaking, by their nature, arbitration proceedings tend not to be subject to

appeal, in the ordinary sense of the word, However, in most countries, the court
maintains a supervisory role to set aside awards in extreme cases, such as fraud or in
the case of some serious legal irregularity on the part of the tribunal.

Section 12 of ACA permits parties to challenge the appointment of the arbitrator only if
circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality
and independence or if the arbitrator does not possess qualifications agreed upon by the
parties. There is no clear definition in the ACA of independence, impartiality or
disclosure of potential conflict of interest, apart from the reference to circumstances
likely to give rise to justifiable doubts as to independence or impartiality. However,
existing institutional rules such as the CADER (Arbitration) Rules require arbitrators to
provide a statement of impartiality. The arbitrator is required to state that they are able
to serve as an independent arbitrator and that they have no past or present direct
relation- ship with any parties or their counsel, whether financial, professional or any
other kind of relationship in relation to which disclosure would be called for. The
arbitrator is also required to declare in writing their impartiality as to all the parties.

Relatedly, the ICAMEK (Arbitration) Rules 2018 require an arbitrator to sign a

statement of acceptance, availability, impartiality and independence, in addition to
disclosing to the Reg- istrar any facts or circumstances known to them that may give
rise to justifiable doubts as to their impartiality or independence. Furthermore, an
arbitrator’s mandate may be terminated under Section 14(1)(a) of the ACA by reason
of inability to perform the functions of their office.

The ACA (under section 13) allows the parties to agree on the procedure for
challenging the appointment of an arbitrator. However, if such agreed is not reached, a
party must, within 15 days of becoming aware of the composition of the arbitral
tribunal or after becoming aware of any circumstances that form a basis for challenging
the appointment of an arbitrator, send a written statement of the reasons to the
74
appointing authority. Unless the arbitrator who is being challenged withdraws from the
office or the other party agrees to the challenge, the appointing authority is by law
required to decide on the challenge within 30 days from the receipt of the statement.

Arbitral awards are deemed to be final and binding on all the parties. Under Ugandan
arbitration law, there is no provision for automatic right of appeal against an arbitration
award on the merits. Under Section 38 of the ACA, an appeal of a domestic arbitration
can only be made to the court on questions of law where the parties have agreed as
such. This position is confirmed in the decision of the supreme court in SCCA No. 06 of
2016 Babcon Uganda Ltd -versus- Mbale Resort Hotel Ltd.
The Award can only be challenged through setting aside procedures. The arbitral award
can be set aside on grounds of; -
a) A party to the arbitration agreement was under some incapacity.
b) The arbitration agreement is not valid under the law to which the parties
have subjected it or, if there is no indication of that law, the law of Uganda.
c) The party making the application was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was unable to
present his or her case
d) the arbitral award deals with a dispute not contemplated by or not falling
within the terms of the reference to arbitration or contains decisions on
matters beyond the scope of the reference to arbitration; except that if the
decisions on matters referred to arbitration can be separated from those not
so referred, only that part of the arbitral award which contains decisions on
matters not referred to arbitration may be set aside;
e) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless that agreement was in
conflict with a provision of this Act from which the parties cannot derogate,
or in the absence of an agreement, was not in accordance with this Act;
f) the arbitral award was procured by corruption, fraud or undue means or
there was evident partiality or corruption in one or more of the arbitrators;
or
g) the arbitral award is not in accordance with the Act.
h) The court can also set aside the award under section 34 of the ACA if it
finds that; the court finds that the subject matter of the dispute is not capable
of settlement by arbitration under the law of Uganda; or the award is in
conflict with the public policy of Uganda.

The application for setting aside must be made within one month from the date of the
award and must be heard interparty.

75
 Where the parties have reserved the right of appeal on a point of law as provided under
section 38 of the ACA, procedure for appealing is set out under Section 38(4) of the
ACA, which provides that an appeal shall be made within the time limit and in the
manner prescribed by the rules of the High Court or the Court of Appeal.

Parties can agree to exclude appeals in domestic arbitration on points of law but cannot
agree to expand the scope of appeal beyond points of law under Section 38 of the ACA.
The grounds for challenging an award by setting it aside cannot be expanded or
excluded by agreement of the parties. The grounds for setting aside are strictly limited
within the provisions of Section 34 of the ACA. In the case of HCCS no. 002 of 2006;
SDV Transami Ltd -versus- Agrimag Ltd & Another Court observed that the Court can
only set aside an award in accordance with the provisions of Section 34 of the ACA.
The same decision confirms the position that a dissatisfied party can only appeal
against an award on questions of law where there is an agreement to do so. The right of
waiver under section 4 of the ACA does not seem to extend to the challenge of the
award. Relatedly, the statutory provisions providing for the challenge of an award by
way of setting aside are not subject to the agreement of the parties.

7.15 The Role of Lawyers In Arbitration;

For years now lawyers have had to keep pace with the vast changes in the practice of
law and have been forced to adjust their tactics to different methods of protecting
clients' interests before tribunals. No longer can the attorney rely on his knowledge of
courtroom proceedings alone and feel that he is secure. All these developments and
changes have an immediate impact on the welfare of the modern attorney in his
practice of law. Today it seems particularly fitting and necessary that lawyers should
take a constant interest in the expanding field of voluntary arbitration and thereby
become fully qualified to handle the arbitral mode of dispute settlement.

A lawyer must be familiar with all aspects of arbitration and its procedures in order to
enable his client to utilize this forum adequately and advantageously. In order to advise
his client whether to use or consent to arbitration, or in drafting an arbitration clause in
a contract, he must know the nature of the process, its best areas of utility, the character
of the agency administering the hearings and its rules. Furthermore, he should know the
type of controversy which is arbitral as both the legislature and courts have made
restrictions as well as any requirements of statutes and judicial decisions.

76
After a dispute has arisen under an agreement purporting to make it arbitral, he must
also know the procedure whereby provisions for arbitration may be enforced or
prevented. When the proceeding is initiated, he must know the method by which the
arbitrator is selected, and how to prepare for, and participate in the hearing.

In bringing a dispute to arbitration the attorney should remember that careful

preparation of the case is just as essential as careful anticipation of a courtroom
appearance. Since the arbitrator will make his award on the basis of the facts and
exhibits presented to him at the hearing, all the requisite documents and papers should
be carefully assembled and labeled so as to make for an orderly presentation of the
case. Where it is practical Photo static copies of the material to be presented should be
made for the arbitrators and the other party so that the hearing will not be unnecessarily
delayed to allow for reading of this evidence. If some of the documents that are needed
by one side are in the hands of the other party a prior request should be made to have
them at the proceedings.

If any trips to various places are required of the arbitrators for some on-the-spot
investigation, careful plans should be made in advance, since representatives of both
parties will have to be in attendance, unless specific authorization to the contrary is
given.
A lawyer should prepare his witnesses. All witnesses must be carefully interviewed so
that they understand the importance and timeliness of their testimony as the freedom
from rules of evidence usually means that each witness is asked merely "to tell his
story" and cross-examination is generally kept to a minimum.

A lawyer should properly present his case during the hearing. The important thing is to
be sure that the arbitrators hear all that the lawyer wishes to be presented and therefore
the following four points should be carefully included in any presentation:
An opening statement which merely indicates the controversy and what is to be proved;
Explanation of the remedy sought;
Systematic introduction of witnesses so as to clarify the nature of the controversy and
identification of documents and exhibits;
A closing statement which summarizes the evidence briefly and also refutes the
opposition's arguments.

77
 Most important to the success of the hearings is a helpful and cooperative attitude on
the Lawyer's part, for any exaggeration or concealment of facts or prolongation of
technical or useless argument will only result in delaying the hearings. Certainly,
introduction of legal technicalities without basic merit but with the object of delaying
proceedings or confusing the arbitrators, as well as continued disregard for the informal
arbitral method, can only have an adverse effect on the Arbitrators. When the award is
made, he must be familiar with the practice for confirming, vacating or modifying it,
and the problems involved in its enforcement.

8. Module Three: Reconciliation, Plea Bargaining and Diversion

Introduction

In this module, students be introduced to reconciliation, plea bargaining and diversion

in the criminal justice system. The definition and meaning of reconciliation, plea
bargain and diversion will be explored looking at the advantages and disadvantages, the
procedure aspects of reconciliation, plea bargain and diversion. The connection of
reconciliation, plea bargain and diversion will be addressed as well as the established
principles and law on reconciliation, plea bargaining and diversion. The students will
have an opportunity to practically apply the law by participating in reconciliation
programs, plea bargain and diversion.

78
9. METHOD 1: RECONCILIATION

9.1 Definition

Reconciliation’ means bringing of two parties into harmony who would have otherwise
been unable to settle their differences (Rule 3, Judicature (Reconciliation) Rules 2011)

In criminal cases, a magistrate’s court may promote reconciliation, and encourage and
facilitate the settlement in an amicable way, of proceedings for assault, or for any other
offence of a personal or private nature, not amounting to felony and not aggravated in
degree, in terms of payment of compensation or other terms approved by the court, and
may, thereupon, order the proceedings to be stayed. The Reconciliation Rules under the
Magistrates Courts Act of 2007 lay a framework for reconciliation of disputes in the
justice system and outline offences that can be reconciled.

9.2 Key Terms under Reconciliation

Complainant’ means a person who is aggrieved or a person who on behalf of the

aggrieved makes a complaint against an accused. ‘Party’ means a victim or an
accused ‘Reconciliation’ means bringing of two parties into harmony who would
have otherwise been unable to settle their difference. ‘Reconciliator’ means a neutral
third party agreed upon by the parties to facilitate the process ‘Settlement’ means an
agreement reached by the accused and the victim to the dispute. ‘Victim’ means a
person aggrieved and complaining against the actions of the accused person

9.3 Background

The Reconciliation was introduced in the Criminal Justice system by the Judicature
(Reconciliation) Rules, 2011. The rules are born out of the Judicature Act from the
function of the rules committee. They operationalize section 160 of the Magistrate
Court Act, CAP 16.

9.4 Appointment of a Reconciliator

 Appointment by the Magistrate with agreement of parties;
 This does not exclude a Magistrate from being a reconciliatory.

79
9.5 Commencement of Reconciliation Proceedings

A Magistrate presiding over a matters encourages parties to reconcile;

Any of the parties to the dispute may request the Magistrate to facilitate the parties to
reach a settlement;

It’s done voluntarily without compulsion;

 Once the parties agree to reconcile, an agreement is drafted, verified to the parties and
authenticated/ endorsed by the Magistrate.
 Once an agreement is reached, signed and authenticated by the Magistrate, the parties
are bound by it.
 The Reconciliator must make a reconciliation report.
 Any party requesting for reconciliation may;
 Make an oral or written application to the Magistrate stating his intention to reconcile
with the other party;
 Propose the name of the reconciliatory;
 The application must be recorded by the Magistrate;
 The Magistrate upon receipt of the application;
 notifies the other party,
 advises the parties whether the matter can be reconciled,
 require the parties to accept or reject the proposed reconciliation
 inform the parties that legal proceedings shall be stayed until such time as
reconciliation is complete;
 where the reconciliator is not accepted, the Magistrates invites proposes for names of
a reconciliatory from either party;
 The Magistrate presiding over shall endorse the reconciliation agreement;
 Where the parties reconcile without a reconciliatory, the parties shall return to court
and inform the Magistrate so that the file is closed.
 The reconciliatory must make a report to the Magistrate presiding over the matter
with extracts of what transpired during the proceedings, the names of the parties and
terms of the agreement.
 Where reconciliation fails, the reconciliatory shall refer the matter to the Magistrate to
continue with the trial.
 The Magistrate shall make a reconciliation order upon receiving the reconciliation
report;
 The Order shall incorporate the terms of the agreement.

80
9.6 Remedies under Reconciliation

When reconciliation proceedings are completed, the court may award any of the
following remedies:
 Apology;
 Restitution,
 Compensation,
 Rehabilitation,
 Counseling or
 Any other appropriate remedy.

9.7 Who may facilitate Reconciliation?

 A Magistrate.

 A Bar Course Student.

 Any other person appointed by the Court.

 A person appointed shall be of high moral character and proven integrity who by
virtue of his/her skills, knowledge, work, standing, relationship or reputation in
society is likely to enable the parties to reach a settlement.

9.8 Functions of a Reconciliator

 To apply principles of nature justice, equity and good conscience

 Give consideration to principles of objectivity, fairness and justice;

 Assist the parties in an independent and impartial manner to reach a settlement;

 Give consideration to rights and obligations of the parties;

 In consideration of the circumstances of the matter, conduct proceedings in a manner

which is appropriate.

 Formulate the terms of the possible settlement where the parties reach an acceptable
agreement;

 Present the settlement to parties for verification;

 Authenticate the agreement and give parties copies;

81
 9.9 Duration of Reconciliation
 Reconciliation proceedings shall be complete within fourteen (14) days from the date
of commencement.
 The Magistrate may upon showing sufficient cause extend the the time within which
to conclude reconciliation proceedings.

9.10 Offences for possible reconciliation

Provisions of the Penal Code Act providing for offences for possible reconciliation

 S. 172(Adulteration of food or drink)

 S. 154 (Adultery)
 S. 235 (Assault)
 S. 302 (Criminal Trespass)
 S. 156 (Desertion of Child)
 S. 127 (Elopement)
 S. 157 (Neglect to provide food, etc for child)
 S. 311 (Pretending to tell fortunes)
 S. 254 (Simple theft)
 S. 81 (Threatening violence)
 S. 122 (writing or uttering words with intent to wound religious feeling)

9.11 Challenges
 The inadequate facilitation allocated to the process;
 Delays are emerging due to abuse of good will of court;
 Indecisive parties
 Corruption.
 The culture of litigation has taken root
 Differences in approach;
 Rejection of reconciliation agreements;
 Uncompromising judicial officers and state attorneys at the office the Director of
Public Prosecutions

9.12 Similarities between Reconciliation and Plea Bargain

 They emanate from the Judicature Act; (Judicature (Plea Bargain) Rules and
Judicature (Reconciliation) Rules.
82
  Victim participation

 Acknowledge of wrong doing

 Time saving/timely justice/speedy trial

9.13 Differences between Reconciliation and Plea Bargain

 The people who manage the process;

 The initiator of the process;

 Difference in courts

10. Method 2: Plea Bargaining

10.1 Definition

“Plea bargain” means the process between an accused person and the prosecution, in
which the accused person agrees to plead guilty in exchange for an agreement by the
prosecutor to drop one or more charges, reduce a charge to a less serious offense, or
recommend a particular sentence subject to approval by court; and “plea bargain
agreement” means an agreement entered into between the prosecution and an accused
2
person regarding a charge or sentence against an accused person.

10.2 Background to plea bargaining

In 1970 the Justices of the United States Supreme Court in the Brady v. United States3
case refused to hold that large sentencing discounts and threats of the death penalty
are sufficient evidence of coercion, whilst accepting the Plea bargain system they stated
that:

"we cannot hold that it is unconstitutional for the State to extend a benefit to a
defendant who in turn extends a substantial benefit to the State and who demonstrates
by his plea that he is ready and willing to admit his crime and to enter the
correctional system in a frame of mind that affords hope for success in rehabilitation
over a shorter period of time than might otherwise be necessary."

2
Rule 4 on interpretation; in the Judicature (Plea Bargain) Rules, 2016
3
397 U.S. 742 (1970),
83
 Plea Bargaining is an important new innovation in Uganda’s Criminal Justice System
that needed testing before guidelines are issued by the Rules Committee. The idea to
introduce the plea bargain system in the criminal justice management in Uganda was
initiated in April 2013 with Hon. the Chief Justice Benjamin Odoki appointing a nine-
member Taskforce headed by, Hon Justice Dr. Yorokamu Bamwine (Former Principal
Judge). Others included three High Court judges, the Chief Registrar, a representative
of the Attorney General, a representative of the DPP’s office, the commissioner general
of Prisons, and a representative of the Uganda Law reform Commission4.

The task force with support from different organizations such as the United States
based Pepperdine University, held sensitization seminars for the stakeholders who
included, the Judiciary, DPP’s office, Prisons, Police and defense lawyers. The
feedback generated from these sensitization seminars and the piloted plea bargain court
sessions formed part of the basis for the enacting of the Judicature (Plea Bargain)
Rules, 2016.

10.3 Practice of Plea Bargaining

Plea bargaining can be carried out in all the courts of judicature in Uganda, the
objectives of Judicature (Plea Bargain) Rules, 2016 are;
i. to enhance the efficiency of the criminal justice system for the orderly,
predictable, uniform, consistent and timely resolution of criminal matters;
ii. to enable the accused and the prosecution in consultation with the victim, to
reach an amicable agreement on an appropriate punishment;
iii. to facilitate reduction in case backlog and prison congestion;
iv. to provide quick relief from the anxiety of criminal prosecution;
v. to encourage accused persons to own up to their criminal responsibility; and
vi. to involve the victim in the adjudication process.

It should be noted that a plea bargain may be initiated orally or in writing by the
accused or the prosecution at any stage of the proceedings, before sentence is passed.
The scope of plea bargain includes;
i. a promise to plead guilty to a charge in exchange for a recommendation for a lesser
sentence;
ii. a promise to cooperate as a witness for the prosecution in exchange for reduced
charges or a reduced sentence, or both; or

4
Daily Monitor newspaper Tuesday April 21 2015
84
iii. a plea of guilty to(i) a minor and cognate offence; (ii) a lesser offence; or (iii) some
charges or counts in exchange for a withdrawal of one or more charges or counts, in
case of multiple charges.

The prosecutor is expected to consult the victims for their opinion especially in regard
to sentencing and through the community officers obtain a community impact report,
which guide the prosecutor as to the Plea bargain negotiations he / she shall have with
the accused person or their lawyer.

The plea bargain agreement is in a prescribed form as set out in the Schedule1 of the
Judicature (Plea Bargain) Rules, 2016. The salient features in the agreement are;
a) Part on waiver of some rights of the accused person
b) The accused’s bio data
c) The case file information
d) The aggravating and Mitigating factors
e) The agreed sentence

The plea-bargain agreement is signed by the accused person, his/her advocate, the
prosecutor and upon its acceptance and tendering in court , the court interpreter and the
Magistrate / Judge also append their signatures in their prescribed parts as court
confirms and records the plea bargain agreement.

Where the plea bargain agreement involves a child, the agreement is executed by either
the parent, guardian, probation and social welfare officer or the legal representative of
the child.

Due process of law is emphasized in plea bargain and includes the following aspects:
 A plea bargain agreement shall, before being signed by the accused, be explained to
the accused person by his or her advocate or a justice of the peace in a language that
the accused understands;
 Court shall satisfy itself that the accused understands his or her right not to plead
guilty, the effects of the plea, the right to presumption of innocence, right to remain
silent and not to testify during the proceedings, right not to be compelled to give self-
incriminating evidence, right to a full trial; and right to be represented by an advocate
of his or her choice at his or her expense or in a case triable by the High Court, to
legal representation at the expense of the State;

85
10.4 The Pros of Plea Bargaining

The Plea-Bargaining system has several obvious advantages which include, more cases
concluded per session, lower cost per file handled compared to traditional cost incurred
in a full trial. In a typical session, judges are expected to handle 40 cases lasting 30
days and costing about Ug shs 1,000,000/= (million shillings) per case tried, a scenario
reduced drastically by Plea Bargain. The victim participates in the adjudication process
as opposed to simply stating what happened. There is reconciliation between accused
and victims as they are all consulted in the sentencing, Community involvement
through the community impact assessment reports, less cases on appeal, reduction in
the backlog cases, potentially rewarding to defense lawyers, less congestion in the
prisons and more importantly it allows an informed accused person to take criminal
responsibility of his or her actions. Plea Bargain increases the chances of timely justice,
the longer a case takes to come to trial, the less likely it is for justice to be done as
witnesses either die, migrate, get compromised/ threatened or lose interest. Plea
bargaining therefore offers a unique opportunity to speed up the trial of cases. Plea
Bargain has provided the justice actors an opportunity to fulfill the spirit of Article
28(l) of the Constitution which provides for speedy trials of accused persons.

10.5 The Cons of Plea Bargaining

The biggest disadvantage of plea bargaining is that an innocent person who has over
stayed on remand may plead guilty as a way of going home quickly, plea bargaining
has hindered the carrying out of good investigations as police and prosecutors jump at
the chance of a quick way to conviction, The inadequate facilitation has made it
difficult for prosecutors to consult victims’ families and community leaders for impact
statements which waters down the true objectives of plea bargaining. The prosecution
should not plea bargain a matter where the victims prefer a full trial.

10.6 Challenges of Plea Bargaining

Unclear procedures of scheduling plea bargaining sessions

The accused persons find it difficult to get scheduled for plea bargaining sessions, the
current procedure requires them to register with the prison authorities expressing their
intention to participate in plea bargain. Once they finish registering they then resort to
prayer, because they have no assurance as that the list will be sent to the relevant court
officers, worse still is the fact that the prisons officers cannot also inform the accused
persons when a plea bargain session will be scheduled. This has caused a lot of stress to
the accused persons.
86
 Uncompromising officers at the office the director of public prosecutions

Article 28 (3) (a) of the Uganda constitution provides that every person who is charged
with a criminal offence shall — be presumed to be innocent until proved guilty or until
that person has pleaded guilty;

Plea bargaining process calls for a negotiation leading to an agreement between the
prosecution and the accused person [refer to the definition of a plea bargain agreement
in the Judicature (Plea Bargain) Rules, 2016], whereas some officers who have had plea
bargain training respect the process of plea bargain negotiation mindful of the fact that
concessions must be made and all the parties must freely participate, the majority of the
officers are “poisoned” by the prosecution mindset which often leads to fixed proposals
for sentencing , with a take it or leave it attitude. The attitude adopted by such
prosecutors reminds me of the graphic representation of plea bargaining that appeared
in the Monitor newspaper of Tuesday April 21, 2015

10.7 Rejection of plea bargaining agreements.

Rule 15. (2) The Judicature (Plea Bargain) Rules, provides that the court shall not
impose a sentence more severe than the maximum sentence recommended in the plea
bargain agreement. While rule 15 (3) of The Judicature (Plea Bargain) Rules,
provides that where the court is of the opinion that a particular case is deserving of a
more severe sentence than that recommended in a plea bargain agreement, the court
shall reject the plea bargain agreement.

Whereas the importance of rule 15(3) of the rules cannot be undermined, it is important
to preserve the sanctity of a plea bargain agreement. The Accused persons who learn at
court that their plea bargain agreements have been rejected lose faith in the plea bargain
system, which turns them into prophets of doom of the whole process.

87
10.8 Uniformity of sentences

The accused persons decry the lack of uniformity in the sentences that their lordships
find acceptable in the proposed plea bargain agreements. The Hon Justice J.N Mulenga
JSC in ATTORNEY GENERAL vs UGANDA LAW SOCIETY Supreme Court
Constitutional Appeal No 1 of 2006 stated that;

“Under the doctrine of stare decisis, which is a cardinal rule in our jurisprudence, a
court of law is bound to adhere to its previous decision save in exceptional cases
where the previous decision is distinguishable”.

The doctrine of precedent [stare decisis] as defined by Hon Justice J.N Mulenga
should have reduced the problem of lack of uniformity in sentencing, this has none
the less not been the case mainly because the only precedents on sentence and reasons
for sentencing that are easily accessible on The Uganda Legal Information Institute
(ULII) at www.ulii.org are those of Hon Justice Stephen Mubiru at the High Court of
Uganda sitting at Arua, an example is the ruling in UGANDA vs OCIMA BEN
HCCR 75 / 2016. There is a limited pool of documented precedents for consideration
in plea bargaining negotiations.

Private brief in Plea Bargaining

88
 Article 28 (3) (d) of the Uganda constitution provides that Every person who is
charged with a criminal offence shall— be permitted to appear before the court in
person or, at that person’s own expense, by a lawyer of his or her choice . Rule 12(1)
(a) (vi) Judicature (Plea Bargain) Rules also provides the accused’s right to be
represented by an advocate of his or her choice at his or her expense or in a case
triable by the High Court, to legal representation at the expense of the State.

The Uganda Law Society introduced the cluster system among its members and the
Criminal Law Cluster is one of the 15 ULS clusters 5 , the ease in accessing court as
demanded by the private practitioners will inventible lead to a more robust criminal
cluster, encourage practice specialization, which inevitably will attract better skilled
lawyers in the court room.

The current administrative procedures have not fully adapted to the plea bargain system
demands. When an accused person instructs an advocate to represent him in plea
bargaining, the dilemma that an advocate will be faced with is how to engage the ODPP
as well as the Registrar’s of the high court, who are used to handling plea bargain in
organized sessions with public brief lawyers.

It should be possible for a practitioner to generate a list of accused’s for representation

on private brief , relay the list to the registrar of court and the office of the ODPP, and
the designated officer of the ODPP arranges to handle the plea bargain negotiations,
while the Judiciary expediently avails an Judge to handle the cases.

11. Method 3: Diversion

11.1 Definition

Diversion refers to the channeling of child offenders away from the formal justice
system to available options within the informal justice system and the community
with the intention of effectively settling the case. A child, according to the
Constitution of the Republic of Uganda, is someone below the age of 18 years. A
child offender, therefore, is someone below the age of 18 years who comes in
conflict with the law or commits an offence.

11.2 Background of Diversion

5
refer to ULS annual report 2016

89
 Diversion was popularized in the criminal justice system as an approach to handling
child offenders by the Legal Aid Clinic of the Law Development Centre in
conjunction with the Justice Law and Order Sector and several development partners.
The diversion program started in 2011 in the districts of Lira, Masindi, Kibaale,
Kabarole, Ibanda, Iganga and Kampala. In these districts, a tremendous change has
been made in the reduction of numbers of child offenders processed in the formal
criminal justice system.

The Law Development Centre- Legal Aid Clinic categories diversion at three levels:

i) Community Level

It involves family conferencing in which the family of the offender and victim meet
and try to resolve the issues. It could be done before the Local Council Court in the
presence of LC’s. These are supported by fit persons and peer leaders selected and
trained by LDC LAC on issues protecting rights of the child. Here diversion is done
through Reconciliation, mediation, counseling and referrals.

ii) Police level

Diversion is done by the Child Family Protection Unit or Criminal Investigation

Department (CID). The persons involved are the police officer CFPU, fit person,
probation and social welfare officer and a coordinator from the Legal Aid Clinic of
the Law Development Centre. Diversion models such as cautions, bond, referrals,
apology and release may be given. This is in furtherance of the spirit of section 89 (i)
of the Children Act Cap. 59.

iii) Court level

Court is empowered to divert a child offending with the involvement of a legal

representative, prosecutor and the child parents where an offence is preferred.
Diversion is done by the preferring Magistrate. As provided for in Section 91 (9) of
the Children’s Act Cap 59, a child offender where applicable and by the approval of
the Probation and Social Welfare officer, can hand over the child offender to a Fit
person for custody as an alternative to remand. The Magistrate will have options of
situation including diversion of the child offender to a fit person recommended by the
Probation and Social Welfare Officers. The fit persons is expected to closely
supervise and guide the child offender to reform and become a responsible person.
The Law Development Centre has been proactive in working with the Probation and
90
 Social Welfare Officers to identify fit persons, train and prepare them for use by
court.

11.3 Who are fit persons?

Fit persons are ordinary members of the community, chosen by the community based
on their leadership capabilities and their willingness to serve the community in
juvenile justice system. The Law Development Centre-Legal Aid Clinic working
hand in hand with the Probation and Social Welfare Officers (PSWO) usual hold
meetings at the community level to engage members of the community to identify
persons of good character to serve as fit persons. The fit persons undergo trainings in
leadership and counseling skills and are commissioned by the Court of law in order
to have power to act. They work in close collaboration with the Local Councils,
community, Probation officers, the police, judicial officers and the district
stakeholders in promoting child justice.

11.4 Who can be chosen to be train as a fit person?

The following are the qualities of a person to be selected as fit person:

 A person of integrity
 A person with fixed place of abode
 A person with no criminal record
 A person who has worked in area of child justice
 A person the community can rely on in terms of availability
 A person with energy to walk or ride a bicycle within the community to follow up
cases.
 A person with minimum education to be able to register cases and write reports.
 A person with leadership quality
 A person who is willing to volunteer to serve the community
 A person who is exemplary to the community
 He or she must be recommended by the Local council leader of the area

91
11.5 How are the fit persons selected?

The Law Development Centre engages the Chief Administrative Officer (CAO) to
authorize the Probation and Social Welfare Officer (PSWO) to assist in the
identification of fit persons. The Chief Administrative Officer authorizes the
Probation and Social Welfare Officer to carry out the process. The PSWO conducts
the Community Development Officers who in turn asks the community to select the
persons who fall in the categories above. Since only 40 fit persons are trained at a
time, it is upon the officials to decide on how the number 40 is to be reached. Since
the aim of diversion is to prevent the number of child offenders entering into the
justice system, it could be ideal to first select fit persons from areas prone to
juveniles’ criminal offences.

11.6 Policy and legal framework for the diversion program

Diversion is a best practice in handling child offenders and is provided for in

International, regional and national legal framework for child protection which
include the following:
 The Convention on the Rights of the Child 1989
 The United Nations Standard Minimum Rules for the Administration of Juvenile -
Justice (the Beijing Rules
 UN Common Approach to Justice for Children (2008)
 The United Nations Minimum Rules on the Prevention of Delinquency
 The African Charter on the Rights and Welfare of a Child
 The 1995 Constitution of the Republic of Uganda –sets the legal and human
rights standards relating to handling of children by providing for their best interest
and promoting reconciliation in adjudication of cases
 The Children’s Act Cap 59 Part X –deals with children charged with offences-
sets the legal basis for diversion of juvenile petty offenders without recourse to
formal proceedings or during formal proceedings
 The Local Council Court Act NO.13 of 2006 –establishes the local council court
at every village, parish, division and sub county level consisting of members of
an executive committee. S.92 empowers the LC Courts to handle all cases and
matters of a civil nature, selected criminal cases and it lists down the type of
reliefs that can be levied.

92
11.7 The rationale for Diversion
 To ensure reduction on the number of minor and less serious offences clogging up
the formal justice system and detention and allow resources to be focused on
repeat or high-risk offenders.
 To prevent stigmatization and labeling of the children and their families.
 The child is made accountable for his or her actions and this Contributes
positively to a child’s development by encouraging children to take responsibility
for the harm caused, but in ways that re-integrate them into society, without
getting a criminal record.
 Promotes effective rehabilitation and reintegration. There is opportunity for
guidance and counseling and thus it is considered to have greater impact.

11.8 Benefits of diversion

 To ensures that solutions are in the best interest of the child as going through the
formal system intimidates and exposes them to trauma while incarceration
exposes them to other vice.(considers the psychological needs of the juvenile).It
also avoids the mixing up of children with senior criminals
 Allows expeditious ,handling of child related cases, reduces case backlog in the
courts
 It has been considered that diversion is less costly
 Seek local solutions for benefit of offender and community and restores
community confidence in the formal system. Avoids unnecessary deprivation of
liberty of the child.-loss of education opportunities by the offending child-child is
taken back to the community.
 Avoids disruption of family ties.

11.9 Principles of diversion

 A child should be capable of forming his own view will have the right to express
his views freely.
 Diversion should take place as soon as possible before the child gets exposed to
negative effects and trauma that is as soon as they are arrested by Police.
 Adopt a child friendly Approach-all the children in contact with the justice system
are to be treated with care, sensitivity, empathy
 Adopt a non -discriminatory approach-irrespective of race, gender, religion, birth,
status etc.
 All actions and decisions must be in the best interest of the child and consider all
possible effects on development of the child.

93
11.10 Criteria used in diversion
 A child qualifies for diversion, if he has committed a minor offence as contained
in the Children Act – e.g. Affray, Malicious damage to property, criminal trespass,
theft, common assault, prostitution
 The child understands the nature of the offence and accepts the consequence
 The child is repentant
 The child has a fixed place of abode
 The child has a responsible parent/guardian who ensures the child is able to go
through the life skills training.

94