WHY YOU SHOULD CHOOSE MEDIATION TO RESOLVE YOUR DISPUTE

By Kato Mpanga, U.K Academic Lawyer and Wyclef Kayonjo, Lead, Innovations and Client Strategy at Fine Media Uganda

Kato MpangaThough the issue of mediation is relevant to many other countries, the discussion here will focus on the situation in Uganda where on 1st February 2013, the Judicature Mediation Rules 2013 were passed into law. The rules made it mandatory for civil matters such as land, and family disputes, among others, to first attempt mediation before being taken to the High Court and its Subordinate Courts.

This article will advocate for choosing mediation to resolve disputes because it is cheap, confidential, and because it gives parties to a conflict control over the process of resolving their disputes. Given the availability of various electronic means of communication, mediation can be conducted online, which allows people in the Diaspora or those who live far away from a mediation venue to engage in mediation without the inconvenience of traveling to a specific venue.

According to Rule 3 of The Judicature (Mediation) Rules 2013, mediation is a process through which a neutral person or organization facilitates communication between conflicting parties to resolve their conflicts. In contrast, litigation is settling disputes in court.

There are several reasons why mediation is a better option than litigation to resolve non-criminal conflicts. First, mediation is cheaper than litigation because it is usually quicker and easier to prepare. According to Rule 8 of the Judicature (mediation) rules 2013, mediation must be finished within sixty days after being started by a mediator whereas litigation can take over eight years in Uganda's courts. 

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

Both mediation and litigation entail costs. For example, to prepare a mediation session, one must pay a mediator, hire a mediation venue, among others. However, the costs incurred paying lawyers to litigate over such a long period of time can hardly be compared to the little amount spent on mediation. Mediation is not intended to deprive lawyers of litigation opportunities. Rather, it is an opportunity to help clients resolve their disagreements more efficiently. 

Second, besides low cost and greater efficiency, mediation is confidential. As outlined by Rule 18 (1) of The Judicature (mediation) rules 2013, information obtained through mediation is confidential unless disclosure is required by law, or if the parties give written permission to the mediator for their information to be disclosed. Nevertheless, parties can hardly keep the fact that they are taking part in a mediation confidential. 

Resolving one’s dispute through litigation means that the public can access the details of one’s case as court hearings are usually open to the public. Consequently, the media can easily report about one’s case in accordance with the sub judice rules. In addition, once a court ruling is made, it is in the public domain. This can easily damage one's reputation or business. Therefore, companies or individuals can consider mediation to resolve their disputes especially in this social media era where one's reputation can be tarnished within no time.  

Third, parties should consider mediation to resolve their disputes because it gives them control of the settlement process as highlighted by Rule 16(1) of The Judicature (mediation) rules 2013. With the guidance of a mediator, clients can negotiate with each other favorable ways of resolving their disputes, though a client who is more knowledgeable about a particular field in which they are attempting to resolve a dispute can take advantage of the other. The role of a mediator is to ensure that there is fairness in mediation.

In mediation, disputing parties are personally involved whereas in litigation clients sometimes feel disconnected to the process since they are represented by lawyers. 

Lastly, using mediation to resolve disputes is cheaper and more convenient because it can be conducted online. For example, instead of buying a flight ticket or paying lawyers to litigate a case in court, a Ugandan living in the Diaspora can choose to use online mediation to help resolve a land or family dispute with the people in their home country. 

A possible drawback is that some people may not have knowledge of using the technology or access to the internet to utilize this approach for mediation. Besides, the cost of the internet in Uganda and the general connectivity challenges might hinder conducting mediation online. Nevertheless, Schedule 2, 3(3) of The Judicature (mediation) rules 2013, states that a mediator needs to ensure that there is balance of power during mediation. Therefore, mediators can assist parties who cannot use online mediation to be able to do so. 

It is also important to note that future mediation will be influenced by Artificial Intelligence (AI). This can be used where parties agree to resolve their dispute with the assistance of AI. For example, Smartsettle ONE, a Canadian dispute resolution tool (robot mediator) helped to settle a three-month dispute that involved around £2,000 in less than an hour. 

When litigation is compared to mediation, it is easy to see that the latter is a better option for settling disputes because it is cheap, and confidential; it also gives parties control over the process of resolving their conflicts, and it can be conveniently conducted online.

Presently, there are several mediation organizations in Uganda which parties in conflict can utilize. They include the Arbitration and Mediation Society of Uganda (AMSU), The International Centre for Arbitration & Mediation in Kampala (ICAMEK), and others.

The authors' contacts: katompanga@yahoo.com and Wyclef@finemediaug.com