REFERRING DISPUTES TO REFERRING DISPUTES TO ADR: A PERSPECTIVE ADR: A PERSPECTIVE FROM A COMMERCIAL FROM A COMMERCIAL

JUDGEJUDGE

By Justice Geoffrey Kiryabwire

The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in

Business.Business.

Contract interpretationNon payment for goods and services givenNon delivery of goods and services paid forDelivery of goods not fit for the purpose or

according to description contracted for.

The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in

Business continued…Business continued…

Financial intermediation correction through loan/ credit non repayment, insurance etc

Joint venture failures and International enforcement of judgment and

many more.

Classification of Disputes.Classification of Disputes.

a) Preventive Intervention (in anticipation of breach) “ Pre emptive strike”

  i.Injunction; ii. Prerogative Orders of Mandamus,

Certiorari, Prohibitionb)  Declaration Rights between parties  i.      Declaratory order ii.      Interpleader (deciding ownership)

Classification of Disputes Classification of Disputes continued…continued…

c) Restitution “ recovery of lost status or property”

d) Compensatory

i.   Special damages

ii.  General damage

iii.      Exemplary / punitive damages

b)      Public Interest Litigation

 

Objectives of Dispute Objectives of Dispute ResolutionResolution

Create reconciliation “ principle of give and take” or “win win” situation

 Determine Rights i.    As of fact ii.   As of law Make directive and enforceable orders.  Determine adequate compensation for wrongs Correct a public wrong. 

Choice of forumChoice of forum

      Enforceability of decisions made

      Neutrality

      Expert understanding

Confidentiality vis a vis open trial

      Speed

Cost

Traditional Litigation Traditional Litigation approach to Dispute approach to Dispute

Resolution its Impact on Resolution its Impact on business transactions.business transactions.

Litigation is the traditional approach to dispute resolution.

Litigation is based on the adversarial system

Litigation is long and expensive

Table 1Table 1 Impact of poor dispute resolution on Impact of poor dispute resolution on developmentdevelopment

Table 2

421 Poor countries

417 Middle Income countries

280 Rich countries

Days from filing case to enforcement

(Source doing business in 2005)

Table 2Table 2 Impact of poor dispute resolution on Impact of poor dispute resolution on developmentdevelopment

Table 4

Country

Debt

US$

Cost of Court and Attorney

fees US$

Venezuela

Philippines

Indonesia

5,000

2,000

2,000

2,500

1,000

2,000 (plus)

(Source doing business in 2005)

Table 3 Impact of poor dispute resolution on Table 3 Impact of poor dispute resolution on

developmentdevelopment  Table 5

Investment as a percent of GDP

19

19.5

20

20.5

21

21.5

22

22.5

23

23.5

Shortest Longest

Countries ranked by days to enforce a contract, quintiles (Source: Doing business in

2005)

Table 4: Private Sector perceptions of access to Table 4: Private Sector perceptions of access to commercial justice institutionscommercial justice institutions

Commercial Dispute Resolution

No. of institutions in Uganda

Perceptions of accessibility nation wide

Perception of accessibility (Kampala)

Informal Sector%N=607

Formal Sector%=488

Informal Sector%N=314

Formal Sector%=264

LC Court 4000 67 59 69 55Mag. Courts 508 43 59 56 76Comm.Court 1 19 27 44 52High Court 1 18 23 36 44Court of Appeal

8 17 22 52 67

Supreme Court 1 15 17 30 49

Other dispute resolution Other dispute resolution mechanismsmechanisms

This where ADR comes inADR can be defined as“That ADR is a structured negotiation process

whereby the parties to a dispute themselves negotiate their own settlement with the help of help of an independent intermediary who is a neutral and trained in the techniques of ADR”

What Alternatives Exist to What Alternatives Exist to what the law has provided?what the law has provided? Negotiation Conciliation Mediation Arbitration Rent a judge Mini trial Ombudsperson

The experience of Mediation The experience of Mediation and Arbitration in Ugandaand Arbitration in Uganda

Since 2000 there has been an increase in the activity of mediation and arbitration following the creation of The Centre For Arbitration and Dispute Resolution (CADER). It is now possible to do some analysis on its impact as a dispute resolution mechanism.

Mediation results under Mediation results under court annex projectcourt annex project

Cases referred to mediation

Mediation cases settled

Mediation cases completed but unsuccessful

Cases discontinued

778 172 251 278

Mediation results under Mediation results under court annexed projectcourt annexed project

1 Total mediations held from start to finish (successful and unsuccessful)

54.3%

2 Mediations that failed at reference for various reasons

35.7%

3 Mediations that settled and disposed of the dispute

22.1%

  Dispute Resolution under Dispute Resolution under TCRA GuidelinesTCRA Guidelines

Emerging ChallengesEmerging Challenges

Intransigent/ unreasonable parties or their legal Advisors who are not willing to try ADR. In some cases counsel has invoked internal processes to defeat ADR

 The Use of Court based ADR to delay justice or act as a “fishing” expedition to establish what is possible. The requirement of Shs. 50000/= levied on failure of a party to show up for mediation has been unsuccessful due to lack of a clear enforcement mechanism.

It has been predicted that settlement processes would result in diminished protection of parties not at the table, frustration of laws designed to create social change, and loss of the court's voice on public values through precedent. With such predictions those in the legal profession would not easily spearhead the move towards ADR.

ConclusionConclusion

Other dispute resolution mechanisms especially ADR are not fully utilized and yet in many cases ADR offers many similar desired qualities of the court system

Furthermore there is now elaborate legislation in place to support the use of ADR I Uganda. What now remains is the need for a change in attitude to embrace ADR as part of the available menu in resolving disputes in Uganda.