Judicature Mediation Rules
In 2003, the Commercial court launched a two year Pilot Project to introduce compulsory court annexed mediation at the Commercial Court. This was done by the enactment of The Commercial Court Division (Mediation Pilot Project) Rules 2003, S.1. No. 71 of 2003. The effect of the Pilot Rules were to make mediation an integral part of the Commercial Court case administration system. The pilot stage was heavily funded by JLOS under the Commercial Justice Reform Programme (CJRP) and the European Union (EU). After the pilot period new Rules were promulgated to wit, The Judicature (Commercial Court Division) (Mediation) Rules 2007, S1. No. 55 of 2007. Under these rules mediation become a permanent feature of the Commercial Court processes and the court become a multi-door court house where mediation was to be attempted by the parties before a case could be fixed for hearing. The objective of introducing these Rules was to assist in the efficient and effective dispute resolution and disposal of cases at the commercial Court.
In 2010, it was evident that the Commercial Court had achieved its objectives and in the process had developed some of the best practices of court annexed mediation in the African continent and which have been the envy of many courts in the East African Region and far including Tanzania, Rwanda, Malawi, Zambia, Nigeria, Lesotho, Ghana, Kenya, South Africa etc. By 31st December 2012, the successful completion rate of all cases referred to court stood at 26%.
Riding on the back of these successes, the Judiciary decided that time was ripe enough for the rolling out of the best practice of mediation to all courts. After two years of rigorous work, the draft Rules were submitted to the Rules Committee chaired by the Hon. Chief Justice and the draft Rules have now been passed into law. These Rules will be applicable to the High Court and Courts subordinate to it.
There are about 12 salient features of the new rules. These include the following;
- The new rules shall apply to the High Court and Courts Subordinate – this means that all the magistrates’ courts will be able to apply these rules. The old rules were applicable only to the Commercial court Division
- The rules shall apply to all Civil actions filed in the High Court and lower courts except civil suits commenced under the small claims procedure
- The rules make mediation Mandatory in the High Court and Courts subordinate. This means that no civil action will be heard by court unless the parties have first attempted mediation
- The rules require judicial officers in the High Court and lower courts to refer all civil suits to mediation before hearing can commence except suits under small claims procedure.
- The rules do not allow for appeals against orders made in mediation
- The window time to conclude a mediation has been expanded to 60 days from 30 days – this eliminates the requirement of parties to apply for extension of time which had proved to be a time wasting procedure
- The rules now allow parties to choose their own mediator if they so wish other than a Judge, Magistrate or a Court Accredited mediator appointed by court. In the old Rules a mediator was provided by court
- The rules also allow children to participate in mediation in their own right in cases where the interests of the child are in issue
- The rules make it mandatory that costs of participating in mediation shall be borne by the parties unless agreed by the parties otherwise – this means that unless there is a prior agreement to the contrary by the parties costs shall not be allowed in mediation
- The new rules also provide the mediator with guidelines on how to conduct the mediation. The old Rules did not provide for guidelines to be followed by a mediator.
- The rules also creates a new monitoring and Evaluation Committee which shall be chaired by the Principal Judge and the members includes all heads of the High Court Divisions, Solicitor General or his representative, Chief Registrar or his representative, the president of Uganda Law society, Executive Director of CADER, Registrar responsible for mediation, a representative of Court Accredited Mediators, and four Chief Magistrates nominated by the Chief Registrar. The old rules created a monitoring committee separate from the Evaluation committee – administration is now more streamlined.
- The new rules also allows a mediator to penalise a party who does not attend mediation without a good cause to pay the party that attends five currency points(Shs 100,000) and this order is enforced by court. In the old rules the penalty was paid to court – it should be noted that unless the party penalised pays this fine the trial Judge will not hear the suit.
The Chief justice officially launched the new rules on the 14th June 2013 at Imperial Royale Hotel Kampala.
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