POST GRADUATE LEGAL STUDIES &

LEGAL AID

Introduction to Alternative Dispute

Resolution

Patson W. Arinaitwe,
Bar Course, Law Development Centre.
 Introduction- ADR
• Alternative Dispute Resolution (ADR) has been introduced as a
stand-alone subject at the Bar course

• It focuses on instructing students in ADR in Civil and Criminal law

and provides a firm grounding in ADR theory and skills dev’t.

• ADR has grown in interest as a critical avenue for resolution of

disputes .

• It has always existed as a form of dispute resolution in societies.

• ADR is increasingly being recommended in Courts as a fast-track

dispute resolution mechanism.
 Introduction- What is ‘conflict’ or
dispute?
• Conflict is when people have - or believe they have -
incompatible goals and interests.

• Conflict is a natural part of change in any society. It is not

necessarily negative and may result in positive change.

• Conflict is negative when violence is used to manage (perceived)

incompatible goals and interests.

• Violent conflicts often revolve around competition for power or

resources
 Introduction- What is ‘conflict’
or dispute?

• Disputes arise for all organizations.

• Dealing with a dispute constructively can enable clients to

achieve thier ultimate objectives, save on resources, avoid
financial exposure, and protect its reputation.

• In contrast, failing to effectively manage a dispute can negatively

impact an organization and risks damaging internal and external
relationships and morale.
 Introduction- strategical approaches
to disputes/conflicts.
Strategies people use to approach conflict

• Collaborative- involves an effort to satisfy both sets of interests

• Accommodation- focuses more on satisfying others’ interests

• Competition emphasizes one’s own interest

• Avoidance- involves low commitment to addressing either set of

interests; and

• Compromise is directed towards sharing losses and gains jointly.

 Introduction- What is ‘conflict’ or
dispute?
How people engage in and avoid conflict

• Aggressive avoidance (“Don’t start with me or you’ll regret

it”)

• Passive avoidance (“I refuse to Tango”)

• Passive aggressive avoidance (“if you are Angry at me,

that’s your problem”)

• Avoidance through Hopelessness (“What’s the use”?)

 Introduction- Who people engage
in & avoid Disputes
How people engage in and avoid conflict

• Avoidance through Surrogates (“Let them Fight”)

• Avoidance through denial (if I close my eyes, it will go

away)- Ostrich man

• Avoidance through premature Problem-solving (there

is no conflict, I have fixed everything)

• Avoiding by Folding (“O.K., we’ll do it your way; Now

can we talk about something else?”)
 Introduction- What’s ADR?

• Alternative Dispute Resolution, or ADR is the means of

resolving a dispute without having to resort to
court/litigation.

• The use of ADR is encouraged by the Constitution and

Civil Procedure Rules-overriding objective that Courts
have to deal with cases justly and fairly.
 Consider the following scenario:
The Matovu’s Family has lived next door to the Musasizi’s
Family for over 15 years. The children of the families go to school
together and the two families regularly go on holidays together
and meet for parties around each other’s houses.

However, recently the Musasizi’s Family has built a shed that

crosses the boundaries into Matovu’s Family garden. The Matovus
are annoyed that their light has been taken and they feel that the
Musasizis are “trespassing”. Musasizs are adamant that the shed
is within the boundaries of the house.

What is the best way to resolve this dispute?

 Introduction- What’s 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.
• An effective dispute resolution system is at the core an efficient domestic
as well as international legal system.
• 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.
• Seems more useful to think of ADR not as alternative dispute resolution,
but appropriate dispute resolution.
• Is designed to be non-confrontational, flexible, inexpensive, and effective
 Introduction- What’s ADR?

• 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.
 Introduction- What’s ADR?

• Most definitions of ADR begin with distinguishing it, because

it is alternative. We therefore ask, alternative to what?
• Legally speaking:
Alternative to adjudication/litigation (formalism)
i.e. as opposed to a court-focused approach to dispute
resolution, a dispute-focused approach is relied on

• Based on that, what then, is the opposite of formalism?

 Introduction- What’s ADR?

• Informalism
• This includes everything that takes place outside the formal
court system e.g., tribunals, arbitration, community justice
projects, negotiation, executive trials, med-arb, mediation,
ombudsman,…
• General features of informalism include:
• Empowerment of individuals
• Co-operative problem solving
• Preservation of business and personal relationships
• Direct participation of parties (thus resulting in tailor made
out-comes)
• Time and cost saving
 Introduction- What’s ADR?

• 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: 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.
 Introduction- What’s ADR?

• ADR concerns unravelling, sorting, or working out a dispute

typically outside the court or through a settlement outside the
court

• Based on that, it could be said that ADR denotes all forms of

dispute resolution other than litigation or adjudication
through the courts.

• Any possible reason why the above definition may fall short of
a definition for ADR?
 Introduction- What’s ADR?
In arriving at your answer consider the following four major types of
ADR:
• Negotiation: parties resolve dispute without help of third party
• Mediation: third party is granted authority to facilitate the
discussion in order to assist the parties to negotiate an agreement
about the future. Third party has no power to make decisions
• Conciliation: third party plays an active role in the conflict
resolution process and thereafter issues a non-binding suggested
resolution
• Arbitration: parties submit dispute to third parties to resolve it.
The third party has decision making authority.

Negotiation aside, any common thread running through the other

types?
 Options for Conflict / Dispute
Resolution
Negotiation

Non Adversarial Mediation/Conciliation

Process Options

Dialogue/Reconciliation

Litigation/Arbitration

Adversarial Adjudication

Confrontational advocacy
 Introduction- What’s ADR?

• The relevance of third-party intervention is apparent especially

when considering that both consensual processes (e.g.,
mediation) and adjudicative processes (i.e adjudication)
involve a third party

• Outside the core ADR mechanisms, ADR in different contexts

almost always involves a third party (neutral).
 What is ADR? (Cont’d)

In light of the above, a more fitting definition for ADR could be:
• “[A] range of procedures which serve as alternatives…to
adjudicatory procedures…for the resolution of disputes,
generally but not necessarily involving the intercession and
assistance of a neutral third party who helps to facilitate such
resolution”

‘ADR Principles and Practice’ Brown and Marriot

 Arbitration a form of ADR

Why is arbitration considered an ADR mechanism

despite falling under the umbrella of adjudicative
procedures?
 Litigation v Arbitration

• Formal • Less formal

• Lengthy procedures • Shorter procedures
• Costly • Less costly
• Rules of evidence apply • Limited discovery process
• Often private
• Public record
• Discretionary 3rd party
• Neutral presiding officer
intervention
• Possibility of appealing • Possibility of appeal in
decisions narrow circumstances
 Some Key ADR Distinctions [1]
a) Non-binding/binding

▪ Nature of commitment parties make when entering the ADR

process.

▪ When parties are bound to accept and respect the agreement of

the ADR process.

▪ In non-binding processes, a thirdy party neutral can not force the

other parties to accept any agreement.

▪ 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
 Some Key ADR Distinctions [2]
b) Voluntary vs. mandatory referrals to mediation
▪ These terms describe the method by which cases enter 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 can be required by the court,
or by a court rule. This is known as mandatory mediation.
▪ Regardless of how parties entered ADR process, they can decide whether
to settle the case.
▪ Parties are not obliged to enter into settlement, but are obliged only to
discuss in good faith, with the other party settlement opportunities.
 Some Key ADR Distinctions [3]
c) Interest-based vs. rights-based
• These terms describe the criterion a procedure applies to resolve the dispute.
• Interest-based ADR processes expand the discussion beyond the parties’
legal rights to look at underlying interests, deal with emotions, and seek
creative solutions. E.g Mediation traditionally focuses mainly on underlying
interests.
• Rights-based processes, on the other hand, narrow issues, streamline legal
arguments, and predict judicial outcomes or render decisions based on
assessments of the legal rights of the parties. E.g arbitration is a rights-based
process.
• 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.
 Some Key ADR Distinctions [4]
Key Takeaways
• ADR is a number of disparate processes used to resolve disputes.
• Parties to a dispute are offered this path as an alternative to expensive and
time-consuming litigation.
• In some instances, ADR offers to settle disputes outside of the courtroom
with the help of an impartial third party.
• Outcomes may be non-binding and advisory in nature or enforceable
without the right to appeal.
• Some ADR mechanisms are mandatory while others can be voluntary.
• Some are interest-based while others are rights-based.
 Some Key ADR Distinctions [5]

Some of the elements of ADR are:

• Existence of issue in controversy

• Voluntary agreement by both parties to participate in ADR

processes

• Voluntary agreement by both parties on the type of ADR to use

• Participation in the process by officials of both parties

 Some Key ADR Distinctions [6]

Goals of ADR
The goals of establishing these processes to resolve disputes as
an alternative to more formal legal processes include:
• to relieve court congestion, as well as prevent undue cost and
delay;
• to enhance community involvement in the dispute resolution
process;
• to facilitate access to justice;
• to provide more effective dispute resolution; and
• to offer alternative methods of dispute resolution in addition
to the regular court system.
 Some Key ADR Distinctions [7]

Characteristics
• Informal;
• Application of equity;
• Direct participation between parties;
• Voluntary: the parties choose to use ADR;
• Non-judicial: decision-making remains with the parties to the
dispute rather than a third-party who has no stake in the
outcome.
 Benefits of ADR

• 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.

• ADR provides answers to all the above 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
 Benefits of ADR (cont’d)

• Advantages of ADR
• The perceived advantages of ADR are:
• Cost saving: judicial process for resolving any disputes involves court
fees, documentation fees, advocate’s fees and many other extra
costs. Moreover, if there is corruption present, the cost may rise
even higher. ADR does not involve expert fees or courts costs.
• Speed: litigation can take over a year to resolve because of different
timing and dates involved. Matters that are being solved using the
ADR method may take months or even just weeks to be resolved.
• Control: the parties have control over some of the processes in ADR
e.g. selecting the panelist and length of the process.
• Confidentiality: it is conducted in private, therefore avoiding
publicity- the public are also unable to attend.
 Benefits of ADR (cont’d)
• Experienced Neutral Panelists: parties are able to select their
panelist from a list of qualified individuals who are specialized
in specific aspects of their disputes.
• Cooperative Approach: it takes place in a more informal, less
confrontational atmosphere. Therefore it looks into the best
interest of both parties in order to conclude a compromised
mutual decision.
• Flexibility: Legal and non-legal disputes can be addressed
during this process proving it to be more flexible.
• It leads to a mutually beneficial solution thus leaving parties in
good terms.
 Disadvantages ADR
Disadvantages of ADR
• Unequal bargaining power: in certain situations one side is able to
control the other therefore power imbalance.
• Lack of legal proficiency: where a dispute involves difficult legal
points a mediator or arbitrator is unlikely to have the same legal
expertise and knowledge as a judge.
• Lack of precedents: it is not easy to predict the outcome of a
dispute decided through ADR as there is no system of precedent.
• Enforceability: most forms of ADR are not legally binding, making
any award difficult to enforce.
• Limits discovery process: ADR generally proceeding without the
protections offered parties in litigation, such as those rules governed
through discovery. Courts generally allow a great deal of latitude in
the discovery process, which is not active in ADR.
 Legislative provisions on
Alternative Dispute Resolution:
The Judicature Act, Cap. 13

• 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.
 Legislative provisions on Alternative
Dispute Resolution:

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

• 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.”
 Legislative provisions on
Alternative Dispute Resolution:

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 Trade (UNCITRAL) Model Law on
International Commercial Arbitration as well as the UNICITRAL Arbitration
Rules 1976 and the UNCITRAL Conciliation Rules 1976.

• 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.
 Legislative provisions on
Alternative Dispute Resolution:

• Magistrate Court’s Act Cap 6

Section 160 of this Act provides for reconciliation in criminal

matters.

• Judicature (Plea Bargaining) Rules, 2016

• The Constitution, 1995