To what extent has ADR been effective in resolving disputes in Uganda?

Case study
Arbitration.

INTRODUCTION

Disputes have existed in society since time memorial and these have been settled
through litigation however there are some other modes of resolving disputes
without necessarily going to the courts of law. "Alternative" dispute resolution is
usually considered to be alternative to litigation. Alternative Dispute Resolution is
therefore any means of settling disputes outside the courtroom.

Alternative Dispute Resolution is a non adjudicative, cost effective and faster

mechanism of resolving disputes. It therefore provides an impetus for the
development of adoptive and innovative strategies for the dispensation of litigation.

ADR was also defined by Oliver L.J in the case of Cult v. Head as the range of
procedures which serve as alternative to the judiciary procedures of litigation and
arbitration for the resolution of disputes generally but not necessary involving the
intercession and assistance of a neutral 3rd party who helps to facilitate such
resolution.

ADR has gained widespread acceptance among both the general public and the
legal profession in recent years. In fact, some courts now require some parties to
resort to ADR of some type, usually mediation, arbitration before permitting the
parties' cases to be tried.

ADR typically includes negotiation, conciliation, mediation and arbitration. In negotiation,

participation is voluntary and there is no third party who facilitates the resolution
process or imposes a resolution.

In arbitration, participation is typically voluntary, and there is a third party who,

as a private judge, imposes a resolution. Arbitration often occur because parties to
contracts agree that any future dispute concerning the agreement will be resolved
by arbitration.

As rising costs of litigation and time delays continue to affect litigation, more states
have adopted ADR however some of these modes are voluntary while others are mandatory, for
instance with the increase of cases in the commercial courts today, dispute resolution has been
adopted requiring each case to go into mediation before going to court, both the parties come
before the mediator, third neutral party and him or her the circumstances of the case, the
mediator is there to resolve the disputes by exploring creative options and facilitating
negotiations that benefit the parties.

In voluntary processes, submission of a dispute to an ADR process depends entirely on the will
of the parties.
It is therefore important to distinguish between binding and non-binding forms of ADR.Negotiation,
mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to
reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding
arbitration produces a third party decision that the disputants must follow even if they disagree with the
result, much like a judicial decision. Non-binding arbitration produces a third party decision that the
parties may reject.

Therefore ADR has been both; increasingly used alongside, and integrated formally, into legal
systems this is because of;

• Flexibility of procedure - the process is determined and controlled by the parties in the
dispute
• Lower costs
• Less complexity ;Parties choice of neutral third party (and therefore expertise in area of
dispute) to direct negotiations and there is a likelihood and speed of settlements;
• Confidentiality; and, the preservation of relationship and the preservation of
reputations

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and

other forms of community justice vary, all share a few common elements of distinction from the
formal judicial structure. These elements permit them to address development objectives in a
manner different from judicial systems.

However this study is centered on Arbitration and its effectiveness in dispute resolution in
Uganda.
Arbitration is defined as the modality or arrangement whereby the parties to a dispute
agree to refer their dispute to an impartial person chosen by the parties to the dispute who agree
in advance to abide by the arbitrators award issued after a hearing at which the respective parties
have an opportunity to be heard.
Arbitration is also defined as a legal technique for the resolution of disputes outside the
courts where in the parties to a dispute refer it to one or more persons by whose decision they
agree to be bound.
The parties seeking to use arbitration are always prepared to reach a binding decision from the
arbitrators.

Arbitration today is most commonly used for the resolution of commercial disputes,
contracts,particularly in the commercial transactions. In some other countries it used to resolve
other types of disputes for instance family disputes, disputes between states, labour disputes
among others.
In Uganda Arbitration predates as far as 1930”s when Uganda adopted the Arbitration Act of
England.This was the main law of arbitration but it was introduced in Uganda on 31st December
1930 during the colonial period.This law was enacted but seldom used.when Uganda attained
independene it changed some of its laws .

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BAKGROUND OF THE STUDY

Dispute resolution outside of courts isnot new; societies world-over have long used non-judicial,
indigenous methods to resolve conflicts. What is new is the extensive promotion and proliferation of
ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals
broader than the settlement of specific disputes

OBJECTIVES OF THE STUDY

1. To analyse the existing laws in Uganda governing arbitration and how best
they can be formulated as a means of solving disputes

2. To analyse the extent to which arbitration has been effective in resolving the
disputes in Uganda.

3. To identify the challenges of ADR and how they can be addressed.

4. To recommend the need for the government,civil s socities and individuals to

embrace arbitrate as aform of dispute resolution.

5. To suggest recommendations and conclusions of the study.

STATEMENT OF THE PROBLEM

Litigation is the primary mode of settling disputes in Uganda, however the

court system is expensive in terms of fees and time, the procedure to be
followed is long and tideous,there is also a problem of case backlog where
cases stall for a very long period in the courts of law without being decided
upon, thus adr has been adopted as a means of dispute resolution and has
led to the increase in speed in settling disputes and created stability in the
resolution of disputes however most decisions reached haven’t been wholly
received or accepted by some disputants creating a biased perception of
ADR.

HYPOTHESIS
Adr is presumed ineffective because ti doesn’t entirely help to resolve the
disputes between the parties thus in Uganda it hasn’t fully reached it’s full
potential and therefore needs more support from courts the government and
individuals to make it more effective in resolving disputes in Uganda.
"Alternative" dispute resolution is usually considered to be alternative to litigation.

Finally, it is important to realize that conflict resolution is one major goal of all the ADR
processes. If a process leads to resolution, it is a dispute resolution process.[4]

The salient features of each type are as follows:

In negotiation, participation is voluntary and there is no third party who facilitates

the resolution process o In mediation, there is a third party, a mediator, who
facilitates the resolution process (and may even suggest a resolution, typically
known as a "mediator's proposal"), but does not impose a resolution on the parties.
In some countries (for example, the United Kingdom), ADR is r imposes a resolution.
(NB – a third party like a chaplain or organizational

In arbitration, participation is typically voluntary, and there is a third party who, as a

private judge, imposes a resolution. Arbitrations often occur because parties to
contracts agree that any future dispute concerning the agreement will be resolved
by arbitration. This is known as a

Thus "alternative" dispute resolution usually means a method that is not the courts.
"Appropriate" dispute resolution considers all the possible responsible options for conflict
resolution that are relevant for a given issue.[10]