With this definition .The central feature that takes place early in the life of the litigation.
6. Early expert evaluation:
The use of an independent expert to investigate and give his expert opinion on any other matter referred to him by the parties. Normally this will be used by the parties to assist them in reaching a settlement or narrowing the issue. Leaders sometimes viewed as expert , they have always investigated and give expert opinion on any matter referred to them by the parties in the course of their work and in so doing they assist parties to reach settlement. 7. Dispute review panel/board. A panel set up under the terms of a contract to adjudicate, meditate, or settle claims, disputes, or controversies referred to them, either on an interim or a final and binding basis. Team of leaders may be constituted under the terms of contract, or under the law to adjudicate, mediate or settle claims / dispute. For example the PPDA laws provide for establishment / appointment of administrative Review committee, composed of civil servants (leaders) to handle complaint of procurement nature. 8. Grievance procedure: A prescribed procedure agreed by a public or private body which it and/ or its members are normally obliged to follow for the consideration and redress of complaints or grievance brought against it or them by employees, client or members of the public . Leaders have always assisted and advised parties of a dispute tom stick to a prescribed procedure agreed by a public or private body which its members are normally obliged to for consideration and redress of complaints. For example procedure for settlement of workers complaints. 9. Fact finding expert: Independent expert appointed by agreement of the parties to investigate and report to them on all or any specified issues of fact and or opinion in a dispute between the, either to assist them in reaching a settlement by an ADR process or, as may be agreed to determine those issued for the purposes of any ongoing litigation or arbitration. 10. Adjudicative processes : These are ADR or other method of resolving disputes which culminate in some form of decision or judgment being delivered. There are many variations within this range including: i) Mini trial(also known as Executive hearing/ tribunal) This is a voluntary, expedited no-judicial process whereby the top management of each party meets to resolve a dispute. The actual hearing is informal and usually lasts one or two days. The presentation is made to the principles on the respective sides by the attorneys representing them. No transcript of the hearing is produced, and the rules of evidence and procedure are not enforced. In some cases a neutral advisor assists the parties in assessing the merits of the case. Cases appropriate for this procedure for this procedure are those which have complex factual situations, involve large sums of money and do not involve questionable areas of law. ii) Rent a judge. This is where by the trial court appoints a referee or a retired judge upon petition by the parties to determine their dispute. The court system is not involved after the appointment of the referee or judge. The parties determine the time and place of proceedings and provide all the necessary facilities including the fees. The findings of fact and law of the referees are filed in court in the form of a report within a prescribed time. This procedure is fairly common in California and it is recommended for reduction by backlog cases in court. It can be used in any case where parties are willing to pay for the services of a private judge. iii) Ombudsman Usually an independent person whose role is to deal with complaints against injustice and mal administration, with the power to investigate, criticize and publish reports on his/her findings. He will normally have powers to recommend or order for compensation of affected parties. Imagine the proceedings before the Uganda human rights commissions squarely under this category. iv) Arbitration A private adversarial process in which the disputing parties choose a neutral person or a panel of neutrals to hear their dispute and to render a final and binding decision or award. The award can be enforced through the court. Part III of the arbitration and conciliation act provides for arbitration as method of dispute resolution by leaders or administrators. Section 3 of the arbitration and conciliation act, provides that an arbitration agreement may be in the form of an arbitration clause in a contract or in a form of a separate agreement. v) Court mandated ADR This is where the court orders the parties to use alternative dispute resolution in settling their dispute. This in appropriate situations including the following: - Where there is an arbitration clause in the contract the subject of dispute. The court is obliged to refer a matter back to arbitration if a party so applies, in a matter which is the subject of an arbitration agreement, unless the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed , or that there is in fact no dispute between the parties. Section 6 of the arbitration and conciliation Act cap 4 provides for the above. It states in part that a party to an arbitration agreement may apply to the court, before or during arbitral proceedings for an interim measure of protection and a court may grant that measure. - The civil procedure rules SI.71-1 mandates a court to hold a scheduling conference in all civil proceedings to inter alia consider the possibility of mediation, arbitration and other form of settlement.
It is important to note that the commercial court has fully embraced the use alternative dispute resolution (ARD). Nearly 80% of its roughly 1400 cases filed every year are resolved through the alternative dispute resolution are not adversarial resolution of disputes (Report of commercial court to annual judges conference- January 2004) - Under Statutory Instrument No 71/2003 mediation is now mandatory in all cases filed in the commercial court after September 2003. Mediation is conducted by trained mediators under the Center for Dispute Resolution(CADER) established by Arbitration and Conciliation Act - Out of court settlements: This is the procedure where the court advises parties and their lawyers to meet informally to review the cases and attempt settlement out of court. If settlement is reached by the parties, then the settlement is reduced in form of consent which is signed by both parties and their lawyers or any party they choose to help have the dispute settled. Parties may record the statement before a judge and it is reduced in form of consent judgment by court
4.0 CASES WHERE ALTERNATIVE DISPUTE RESOLUTION MAY NOT BE SUITABLE. Alternative dispute resolution other than court litigation (adjudicative process) may sometimes not be suitable for the following reasons: i) Where a legal, commercial or other precedent needs to be set ii) Where summary judgment is available fast and effective. Under Order 36 of Civil Procedure Rules SI 71-1 it provides for summary proceedings meant for quick disposal of certain cases by court. For example liquidated debts. iii) Where parties require emergency injunctive or other protective relief. iv) If parties are working quickly and effectively towards settlement. v) Where publicity is actively sought. For example in cases of corruption. vi) Where there is no real interest in settlement out of court by the parties involved. 5.0 EMERGING ISSUES/ CHALLENGES It is important to note that Alternative Dispute Resolution (ADR) or other methods of dispute resolution other than through court settlement has faced and continues to face several challenges including: i) Lack of support from lawyers for other methods of dispute resolution ii) Its a challenge to assure people that the result of such other methods of dispute resolution is an agreement that will be honored iii) There is fear that lawyers who resort to other methods of dispute resolution other than court litigation are weak lawyers. iv) Fear that a lawyer cannot build his reputation without trial practice v) The fees structure for Alternative Dispute Resolution methods is npt standard fee hence left to agreement by parties which quite often leads to collapse of mediation. vi) The belief among advocates that shifting from advocacy to neutrality jeopardizes their work. vii) That sometimes confidentiality is compromised in other methods of dispute resolutions. viii) Alternative dispute resolution (ADR) could stifle development jurisprudence 6.0 CONCLUSION The use of different methods that was originally referred as Alternative Dispute Resolution in settlement of disputes by leaders and administrators in our system has no doubt contributed immensely to resolving the seeming intractable problems facing the Uganda Judiciary. This approach is not a new phenomenon. It works in our system and it is here to stay. It can be efficient and effective if properly used.
I share the view of using different method by leaders to settle disputes. I believe that Alternative Dispute Resolution methods be an optional or complimentary mechanisms to litigation rather a substitute. The importance our civil justice system in determining the rights and responsibilities of a free and democratic society must never be under mined . The alternative techniques are not a panacea for all that ails the civil justice.
The Alternative Dispute Resolutions methods offer a variety of techniques to assist disputants in arriving at solutions which are more expeditions, less expensive and consequently, far less draining from an emotional and psychological point of view for the participants