Friday, June 3rd, 2022
Every contract that you might get your hands on will have a section that will provide for dispute resolution. We have mentioned before that solving your case outside the court is usually the best option for any party. Unlike other forms of dispute resolution, mediation is one of the arms that opens up a case to a third party known as a mediator to help parties negotiate. Tensions are high and in reality, the one thing an aggrieved party may desire is to see the other party sweat at the knees. Now there may be a few reservations about the mediation given that a third party will be subject to all one’s dirty linen. However for mediation to be effective, a mediator would have to know all facts of each case to reach the best solution. A party must do a cost-benefit analysis at the earliest stage to participate in the mediation process with a willing spirit, an open mind, and a heart. Truth is, for mediation to work, compromises need to be made.
“Mediation and reconciliation work is about a profound quest for justice and social transformation. But at the same time, they are about service, solidarity, about exploring and rediscovering the human spirit that has been lost or shattered through human conflict, cruelty, ignorance and greed.”~ Hizkias Assefa
Below are a few benefits to help make your decision easier;
1. It saves time
You have probably heard the saying that the best things in life take time. Well, court proceedings are the exception to that rule. The journey to trial is a long and tedious process. Now before you go and say that you have heard this before, allow me to highlight a few more things for you.
A suit in Uganda begins with filing, allowing 21-35 days to effect service of summons. Fourteen days may elapse before it is fixed for mediation. How long the parties are given before commencement of mediation varies from Mediator to Mediator. Suffice to say that a month may go by before the 1st mediation setting takes place. The Judicature (Mediation) Rules 2013 provide in Rule 7 that mediation be concluded in sixty to seventy days. If the matter does not settle, a month may go by for exchanging the Joint Scheduling memoranda, compiling and filing the Trial bundles, followed by witness statements, hearing date may then be fixed for two to three months ahead. By the time the hearing starts, six to nine months will have gone by.
This was stated in the case of Sudhir Ruparelia & Anor V Crane Bank Limited [In Receivership] (MISC. APPLICATION N0. 320 OF 2019)  UGCOMMC 21 (26 August 2019).
It is obvious that by the time a case goes through all the proper channels to be awarded a judgment and execution, a large amount of time would have passed. So much could happen in that time. I believe it would be easier for a party to bite the bullet and settle at mediation.
2. Restoration of relationships.
If you have watched any legal drama, you might have noticed that after a court session has commenced and been concluded, several parties go their separate ways. Though legal dramas are not necessarily reality, they do not stem far away from the truth. The court process is quite combative to leave as many casualties in its wake as possible. By the time a hearing is done, it is clear that several names may be dragged through the mud to reach their end.
Meditation on the other hand provides an avenue for this to be controlled. Accordingly, the parties are given a chance to rekindle their relationship. While in a court hearing, it is clear that there is a winner and a loser. At mediation, everyone is a winner in one way or the other because each party is required to make compromises.
3. The gift of confidentiality.
Remember the reservations we mentioned earlier, well you do not have to worry. Unlike court proceedings, as a rule, mediation proceedings are confidential. Whatever is said in mediation stays in mediation. The confidentiality level extends to the point where any information can’t even be shared at the hearing if mediation fails. As a result, parties with information-sensitive cases like banks or couples in divorce are encouraged to find ways of settling their issues at mediation. Otherwise, once you subject yourself to a full hearing, the record of proceedings forms part of the public record and can be accessed by anyone.
4. Parties Control the Process.
At a hearing, the fate of each case is in the hands of the judicial officer, and parties speak through their lawyers. At mediation, the parties have control over the outcome. A mediator only presents as a facilitator but does not direct or order any party to do that which they are not willing to do. All judgments are given with the mutual consent of the parties. This removes parties from the burden of being at the mercy of the court opening their result to being more predictable and negotiable unlike in a normal court process.
5. Mediation offers a binding decision.
One may fear that with the informal nature of mediation that a decision reached may not be taken seriously as a court judgment. Contrary to this belief, a decision reached through mediation is as binding as a judge-made decision. Because it is a consent judgment, it is more enforceable and binding since it cannot easily be varied unless there are exceptional circumstances like fraud, duress, coercion, or mental incapacity that is proved by the aggrieved party. Rest assured that justice outside the court is still justice and mediation is not so bad after all.
ABM Chambers, House 42 | 54 Kanjokya Street, Kamwokya
+256 (0) 393 228 339 +256 (0) 414 530 844| email@example.com | www.abmadvocates.com
Copyright ©2022 Apio, Byabazaire, Musanase & Co. Advocates. All Rights Reserved. Designed : Lwegatech