Hon Justice Kiryabwire in his paper “Alternative Dispute Resolution” defined Arbitration as the

procedure whereby parties in dispute refer the issue to the third party for resolution and agree to be
bound by the resulting decision. He went ahead to state that the third party must be an independent
intermediary who is neutral and trained in the techniques of ADR.
In Uganda arbitration is governed by different provisions of the law which include the Judicature Act
Cap 13 Section 26-32, the Civil Procedure Act and the Civil Procedure Rules i.e O.12 & 47,the Arbitration
and Conciliation Act 2000 Cap 4 (ACA) and the case law provision.
In East African Development Bank V Ziwa Horticultural Exporters Ltd (High Court Miscellaneous
Application No.1048 of 2000) [2000] and Section 5 of Arbitration and Conciliation Act (ACA) we note that
arbitration can either be voluntary or mandatory.

Section 68(e) of ACA provides that the arbitrator to be appointed must be qualified.

Where parties chose to resolve a dispute by Arbitration and make a term in the agreement, they are
bound by that. They are not allowed to use the ordinary Court although if they file their dispute before
ordinary court it won't be illegal.

In NSSF v Alcon International it was held that if the clause is provided but the parties choose to go to
ordinary Court because they have unlimited jurisdiction the matter will not be null and void but will be
premature and the judge will refer to arbitration.

In Tibertima mining co ltd v kilembe.... Kilembe was digested to Tibertiber and under the causation
agreement one of the clauses were that disputes where to refer to arbitration for resolution in random.
A dispute a rose as to payment of a licensing fees and succession rights. At the hearing a preliminary
point was raised "the matter should have preferred to arbitration rather than to ordinary Court"and the
judge agreed. In such circumstances that judges stays the matter and refer the dispute to arbitration.

The major challenge to arbitration is that it has no room for appeal for a higher forum to parties
aggrieved in arbitration just like how it happens in ordinary courts.

The following is the process of Arbitration describing various stages involved in Arbitration.
Stage 1.
Section 21 of ACA provides that Arbitral proceedings in respect of a particular dispute shall commence
on the date on which a request to the dispute to be referred to Arbitration is received by the
respondent.
Section 22 of ACA provides that the Arbitral proceedings will be conducted in English language unless
the parties agree otherwise.
Stage 2.
Section 11 of ACA provides for appointment of arbitrators and allows non-nationals to be arbitrators or
to act as arbitrators if appointed by the parties.
It further provides that where there are 3 arbitrators each party shall appoint one arbitrator and the two
arbitrators so appointed shall appoint the third arbitrator.
In case of 3 arbitrators, if a party fails to appoint the arbitrator within 30 days after receipt of a request
to do so from other party or if the 2 arbitrators fail to agree on the 3rd arbitrator within 30 days, any
interested party may apply to the appointing authority for appointment of an arbitrator.

Still provides that a decision of the appointing authority in appointing of the arbitrator shall be final and
not subjected to appeal.
Stage 3.
Section 12 of ACA provides for the grounds for challenging the decision of the appointment of
arbitrators. The person so appointed or any other party to the dispute may challenge the appointment
on grounds that the appointed arbitrator may not be impartial /independent as seen in Roko
Construction Ltd V Kobusingye(Miscellaneous Cause No.22 of 2021)[2022].
Section of ACA provides that a party who challenges the appointed arbitrator may do so within 15 days
after becoming aware of appointment and shall in the written statement disclose the reasons for
challenging as seen in Roko Construction Ltd V Kobusingye(Miscellaneous Cause No.22 of 2021)[2022].

Stage 4.
Section 23 of ACA provides that a statement of claim if filed at the arbitral tribunal by the party initiating
the arbitration proceedings detailing the brief facts pertaining the dispute, the issue to be resolved and
the remedy sought.
It further provides that the respondent shall state his or her defence in respect to the particulars and the
claimant shall have a right to file a reply to the defence.

Stage 5.
Section 24 of ACA provides for hearing and written submissions, unless the parties agree otherwise the
arbitral tribunal shall hold oral hearings at an appropriate stage of the proceedings. This is in line with
Articles 28, 42 and 44 of the Constitution and the principles of natural justice.
Section 25 of ACA provides that if the claimant fails to communicate his /her statement of claim, the
arbitral tribunal shall terminate the arbitral proceedings but if the respondent fails to communicate
his/her defence, the arbitral tribunal shall continue the proceedings.
Section 27 of ACA provides that the arbitral tribunal or a party with the approval of the tribunal may
request court assistance in taking evidence.
Stage 6.
Section 29 of ACA provides for decision making by a penal of arbitrators.
In arbitral proceedings with more than one arbitrator any decision of the arbitral tribunal shall be made
by majority of its members.
If the arbitral proceedings are successful, the arbitral tribunal may record the settlement in form of an
arbitral award.

Section 31 of ACA provides that an arbitral award shall be made in writing and shall be signed by an
arbitrator and shall state the reasons upon which it is based.
The costs and expenses of an arbitration shall be appointed to a party by the arbitrators and if not done
each party shall be responsible for the legal and other expenses of that party.
In Major Kakooza Mutale V Balisigara Stephen, Justice Elizabeth Musoke in line with Section 33 of ACA
and Section 99 of CPA the final decision of arbitral tribunal becomes functus officio.
Stage 7.
Section 34 of ACA provides for setting aside the arbitral award. The party that is desirous to set aside the
arbitral award may make an application on the following grounds.
a. A party to the arbitration agreement was under some incapacity.
b. The arbitration agreement was not valid
c. Failure to observe principles of natural justice
d. Corruption
e. Undue influence etc.
This must be done in one month from the date the award was given as seen in Roko Construction Ltd V
Kobusingye(Miscellaneous Cause No.22 of 2021)[2022].
Stage 8.

Section 36 of ACA provides for enforcement of the arbitral award. Where the time for making an
application for setting aside the award has lapsed, the award shall be enforced in the same manner as if
it were a decree of the court. See O.22 CPR.

Arbitral awards

1. Enforcement of an arbitral award.

Recognition of an award. Section 35 of ACA provides that an arbitral award is recognised and enforced
by the High court.

Section 36 of ACA provides for enforcement of the arbitral, where the time for making an application for
setting aside the award has lapsed the award shall be enforced in the same manner as if it were a decree
of the court. See O.22of CPR.

2. Garnishee order absolute. When it is absolute it has to be obeyed and enforced.

Setting aside an arbitral award.

Order 47 r 15(3) provides that when one is applying to set aside the arbitral award, application must be
by notice of motion and an affidavit in support of the application, the role of affidavit is to set out the
grounds upon which the application is done.

For example one can call the court and a section 98 to use its inherent jurisdiction to set aside the
awarded order of arbitration.

Section 34 of ACA provides that the party is desirous to set aside the arbitral award may make an
application on the following grounds;

 A party to the arbitration agreement was under some incapacity.

 The arbitration agreement was not valid.

 Failure to observe principles of natural justice.

 Corruption, fraud and undue influence.

This must be done in one month from the date, the award was given. See the case of Roko Construction
V Kobusingye.

4. Time of setting aside an arbitral award. Section 34(3) of ACA provides that an application for setting
aside an arbitral award may not be made after one month has lapsed from the date on which the party
making that application has received the arbitration.

In M and S v kilembe mines, M and S sued kilembe claiming that Chile and they had bleached a contract
related to it installation of electricity to kasese the arbitrator found in favour of M and S. Kilembe was
aggrieved by the arbitral award in return however couldn't appeal. So this means that they do not
Appeal but apply to set it aside.

Arbitration can be Ordered, mandatory or Voluntary

In the case of East African Development Bank V Ziwa Horticultural Exporters Ltd (High Court
Miscellaneous Application No.1048 of 2000) [2000] we noted that arbitration can either be mandatory
or mandatory.

Order 47 r 3 and Section 60CPA

Arbitration may be ordered, in this circumstances even if there is no arbitration clause the trial court can
be referred to arbitration eg in the case of Raja v Singh and Shah v Seth 1964.

Mandatory Arbitration.

Domestic Example (Uganda): In Uganda specific sectors or industries might have statutory provisions
mandating arbitration.
In Employment Act (EA) of 2006 under Section 93 of (EA) and Section 3 of LADASA might require
mandatory arbitration for certain employment disputes before employees can file claims in Court. This
ensures that parties involved in these disputes must first attempt arbitration before pursuing arbitration

Under Mandatory Arbitration the following must be ascertained as per the case Simba Properties
Investment Co.Ltd & others V Vantage Mezzanine Property Fund 11 Partnership and others
(Miscellaneous Application No.414 of 2022).
 That there is a valid agreement between the parties.
 That the agreement has a valid and enforceable arbitration clause.
Once the above are ascertained the powers of the court are limited per section 9 of ACA.
The award of the arbitrator is final and binding unless it is challenged. As per section 34 of ACA.
International Example: Some international treaties or agreements mandate arbitration for specific types
of disputes like the United Nations Conference on Trade and Development (UNCTAD).
In Certain trade agreements between countries might stipulate mandatory arbitration for resolving
disputes related to trade tariffs or intellectual property rights like WIPO, WTO, ICSD and TRIPS
Agreement etc. The United Nations Convention on the Law of the Sea (UNCLOS) mandates compulsory
arbitration for, maritime disputes between states.

Voluntary Arbitration.

Domestic Example (Uganda).

In Tibeingana V Vijay & Anor(Miscellaneous Cause No.10 of 2016)[2016]Justice Christopher Madrama
stated that where parties voluntarily agree to arbitrate any dispute and the disagreement arises
regarding payment terms and opt for arbitration in a mutual agreement they must demonstrate their
choice to resolve disputes outside of court and the following must be ascertained;
 That there is a valid agreement between the parties.
 That the agreement has no valid and enforceable arbitration clause.

 The parties at their own initiative after breach has occurred choose to refer the matter to arbitration.
 The arbitrator just act as the advisor.
 The decision of the arbitrator is not binding save where it is accepted by the parties.
 It doesn’t waive the parties’ right to sue or appeal.

International Example (Case law).

In AT&T Mobility LLC V Concepcion, 563 U.S.333 (2010)[2011]. The U.S Supreme Court upheld an
arbitration clause in a consumer contract, affirming that the Federal
Arbitration Act supported the enforcement of agreements that required arbitration. The case
showcased the voluntary nature of arbitration, emphasizing the parties’ agreement to resolve disputes
through this method.

The following are the similarities between Arbitration and litigation which I labour to explain below.
Hon Justice Kiryabwire in his paper “Alternative Dispute Resolution” defined Arbitration as the
procedure whereby parties in dispute refer the issue to the third party for resolution and agree to be
bound by the resulting decision.

Merriam Webster defines “Litigation” as the process of resolving a dispute in a public court. Litigation
comes from the Latin maxim “litigationem” which means “act of carrying on a law suit”.

1. In both the principles of natural justice are observed.

Section 24 of ACA provides that the arbitral tribunal shall hold oral hearings at anappropriate time of the
proceedings. Following the decision of Major Gen.Tinyefuza V AG in line with Article 28, 42 & 44 of the
Constitution, it is a must to observe natural justice principles.
In both the decision carried at becomes functus officio.
Section 33 of ACA and in the case of Roko Construction Ltd V Kobusingye (Miscellaneous Cause No.22 of
2021)[2022],we note that the decision of the arbitral tribunal (arbitral award) becomes functus
officio.Still in Major(Rtd) Kakooza Mutale V
Balisigara (Civil Appeal No.121 of 2020)[2022] and Section 99 of CPA Justice Elizabeth Musoke noted
that once a court gives a decision becomes functus officio.
2. In both there is exchange of pleadings.
Section 23 of ACA provides that the respondent shall state his or her defence in respect to the
particulars and the claimant shall have to file a reply to the defence and the same is seen under O.6 r 7
and 8 of CPR and the case of Stop and See V Tropical Africa Bank (Miscellaneous Application No.333 of
2010) [2010].
In both the processes the language used is English language as per Section 22 of
Arbitration and Conciliation Act and Section 88 of Civil Procedure Act and the case of Rama Makuza V
Nakamya & 2 Others HCMA No140/2013.
3. In both processes there is amendment of pleadings.

Section 23(4) of ACA provides that a party may amend or supplement his/her claim as defence during
the course of arbitral proceedings. Still under O.6 r 19 & 20 of CPR a party may amend its pleadings as
seen in the case of Stop and See V Tropical Africa Bank (Miscellaneous Application No.333 of 2010)
[2010].
4. In both processes there is challenging of the arbitrator.
Section 12 of ACA provides that the person so appointed or any other party to the dispute may
challenge the appointment on grounds that the appointed arbitrator may not be independent as seen in
Roko Construction Ltd V Kobusingye(Miscellaneous Cause No.22 of 2021)[2022].
Still in the case of Major Gen David Tinyefuza V Attorney General (Constitutional Petition
No 1 of 1996)[1997] it was observed that even in litigation a party is at liberty to pray to court to set
aside the presiding judge for reasons of him not being impartial.
4. In both processes there is setting aside a judgement.

Section 34 of ACA provides that the party that is desirous to set aside the arbitral award may make an
application within one moth from the date the ward was given. Still O.9 r 27 of CPR, O.9 r 12 of CPR and
the case of Christopher Nsereko V Nakasumba Mary CACA No.71 of 2015 provides for the same.

The following are the differences between Arbitration and Litigation as explained below.
1. Privacy.
Arbitration is a private procedure and tries to maintain long term relationships in commercial
transactions unlike in litigation where disputes are resolved in open courts which tend business
relationships as seen in the case of Simba Properties Investment Co.Ltd & others V Vantage Mezzanine
Property Fund 11 Partnership and others (Miscellaneous Application No.414 of 2022).
2. Criminal Matters.
Arbitration is non applicable to criminal matters as per the case of Kameke Growers Co-operative Union
Ltd 1994 as per Justice Tsekoko while litigation is applicable to criminal matters and civil as seen Akbar
Godi V Uganda(Criminal Appeal No62 of 2011)[2013].

3. Tax Matters.
Arbitration is non applicable to tax matters as per the case of Total Oil V URA(Civil Appeal No.6 of 2001)
while litigation is most appropriate one as seen in the case of Testimony Motors V Commissioner of
URA(Civil suit No.004 of 2002).
In Conclusion, the comparative analysis of arbitration and litigation underscores the flexibility and
efficiency of arbitration in resolving disputes. While litigation offers a formal legal process, arbitration’s
speed, cost-effectiveness, and confidentiality make it a compelling alternative, providing parties with a
nuanced choice for dispute resolution.

Mediation

Justice Odoki in British American Tobacco (U) Ltd V Sedrach Mwijakubi SCCA No.01 of 2012 defined
“Mediation” as a voluntary and confidential form of ADR that involves an impartial person called a
mediator to help the disputant parties reach an agreement.
Mediation was first introduced as part of process at the High Court Commercial Division and other
courts by Mediation Rules of 2007 and 2013 which were made under Section 41 of the Judicature Act.
The said Mediation Rules of 2007 and 2013 define Mediation and a Mediator as follows.
Mediation .Refers to the process by which a neutral third party facilitates communication between
parties to a dispute and assist them in reaching a mutually agreed resolution of the dispute.

Mediator.

Refers to a person eligible to conduct mediation and this could be a judge

,Registrar,Magistrate,a person certified as a mediator by CADER or a person with relevant qualifications
and experience in mediation and chosen by parties to a dispute.
As earlier stated under Rules 2, 4 and 5 of the Judicature (Mediation Rules 2013, Mediation in civil suits
was mandatory until the enactment of the Civil Procedure (Amendment) Rules which have rendered
mediation optional.
The above position of the law is seen in the case of Carlton Douglas Kasirye V Sheena Ahumuza aka
Tasha HCMA 150 of 2020 where Court held that mediation in civil matters is no longer mandatory.
In Betuco (u) Ltd V Barclays Bank Ltd &3 Ors (Civil Appeal No.1 of 2017)[2018] Court stated that where
parties mediate their dispute successfully they are required to reduce the terms into a consent
judgement which must be filed in court and endorsed by the same. See British American Tobacco (U) Ltd
V Sedrach Mwijakubi and Peter Mulira V Mitchell Courts.
The rationale for mediation.
The courts are very busy with a lot of cases. In 2011, the government introduced a requirement for
anyone who wants to apply for a court order linked to either children or either financial circumstances
during divorce to first undertake a Mediation Information and Assessment Meeting (MIAM) with a
trained family mediator.
In civil cases where there is an offer to mediation by the court and is refused or ignored there maybe
negative cost implications on the party denying.
Rule 8 of the Judicature (Mediation) Rules-A civil action referred to
mediation is expected to conclude within 60 days An agreement arising out of court-annexed program
is enforceable as a court order.
PRINCIPLES OF MEDIATION

1. Self-Determination. Participants should be free to choose their own dispute resolution process.and
are encouraged to make their own decisions on all issues.
2. Informed Consent Informed consent is supported when mediators disclose or o 昀昀 er to disclose the
information reasonably necessary for informed decisions on whether to use the mediator and whether
to participate in the speci 昀椀 c mediation process. Guideline 4(4) of the Guidelines for Mediators under
Schedule 2 of the Judicature Mediation Rules 2013

3. show that a mediator shall not act or continue to act in mediation where he or she has a con 昀氀 ict of
interest unless all the parties speci 昀椀 cally acknowledge the disclosure and agree in writing to the
mediator acting or continuing to act as mediator.
Mediators are encouraged to explain the mediation process and the roles of the mediator, the
participants, their representatives, and others inattendance. Guideline 2 of the Guidelines for Mediators
under Schedule 2 of the Judicature Mediation Rules 2013. Con 昀椀 dentiality & privilege Parties involved
in a mediation (insiders) cannot make prohibited disclosures to people outside the mediation.

Rule 18 of The Judicature (Mediation) Rules- no writing that is prepared in the course of mediation is
admissible or subject to discovery for purposes of a trial. This is in line with the without prejudice rule. In
Bashir Bagalaliwo Balozi v. George Kabyemera (Kampala Highcourt Civil Suit No. 51 of 2014), Court relied
and quoted the case of Ocean bulk Shipping and Trading SA –v- TMT Asia Limited and 3 others [2010]
UKSC 44 where court held that the “without prejudice” rule, initially focused on the case where
negotiations between two parties were regarded as without prejudice to the position of each of the
parties in the event that the negotiations failed. That, if the negotiations failed and the dispute
4. Impartiality . Mediators should make good faith e 昀昀 orts to avoid con 昀氀 icts of interest. Guideline
3(1) and (2) of the Guidelines for Mediators under
Schedule 2 of the Judicature Mediation Rules 2013 provided that a mediator must endeavour to act
fairly towards the parties in the mediation and be impartial by not having any bias in favour of any party
A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner.
5. Neutrality A mediator must have no interest and biasness in procedure.
6. Voluntariness. Parties are free to enter into mediation and walk away at any stage.
7. Competence and Role. Mediator must know the limits of your ability.
8. Liability. It looks at the duty to protect parties.

MEDITIATION COURT SUMMARIES AND MEDIATION COSTS.

1. Mediation summary
Mediation summary is one which avails information related to the plainti 昀昀, the defendant, their
advocates, their address and contracts for purposes of information 昀氀 ow and mediation. It is done at
the time of 昀椀 ling pleadings at the registry and failure will lead to incomplete pleadings.
Rule 5 of Mediation Rules provides for its role as to explore settle.
Rule 5(2)-duty is on the counsel to serve mediation case summary on the opposite counsel.
General Rule “No pleading without mediation summaries”. In practice, mediators are not allowed to
allow parties without authority to sign mediation settlement agreement.
2. Mediation costs. The mediation costs are provided for under Rule 14 and 19 of the Judicature
(Mediation) Rules as follows;
Rule 14(2) - it provides for 5 currency point for failure to attend mediation process.
Rule 14(3)-it provides for certi 昀椀 cate for adjournment of costs.
Rule 19- 50,000sh for a party not showing up for mediation hearing.

The following are the positive effects /Advantages of mediation which as stated below.
 Time –efficient. Resolving conflicts through mediation often takes less time than formal legal
proceedings.

 Cost-effective. It’s usually less expensive than going to court. i.e R.22 Mediation Rulesprovides that
each party shall bear its own costs and expenses of its participation in mediation.
 Preservation of relationships. Mediation aims to maintain or improve relationships, aims to maintain
or improve relationships, which can be important especially in family business.
 Confidentiality. Discussions in mediation are usually confidential, offering a more private setting than
court proceedings.
 Informal procedure compared to formal that involves technicalities.
 Control and flexibility. Parties have more control over the outcome and can craft creative solutions.
 Binding decision as a consent judgement.
 It is voluntary and free.
 With Mediation everyone wins.

The following are the negative effects /disadvantages of mediation which as stated below.
 Power imbalances. In cases where one party has more power or resources, negotiation might lead to
an unfair outcome.
 Lack of legal expertise. Without legal guidance, parties might overlook legal rights or implications.

 Stalled negotiations. Deadlocks can occur if parties can’t find common ground or are unwilling to
compromise.
 No binding resolution. Unlike arbitration or curt decisions, negotiated agreements may not be legally
binding without proper documentation or enforcement mechanisms.
 Emotional involvement. Strong emotions can hinder rational decision making during negotiations,
impacting the outcome.
 The following are the roles of a mediator as stated below.
 Facilitate communication between two parties.
 Setting up meetings.
 Review the mediation proceedings.
 Entertains evidence from both parties.
 Come up with a solution to the dispute.
 Must be neutral.
 Must keep the dispute privately/confidential.
In Conclusion, a mediator plays a crucial role in fostering communication, understanding, and
resolution. Through impartiality and active guidance, they create a conducive environment for parties to
collaboratively reach positive and sustainable agreements, enhancing relationships and preventing
future conflicts.

Land matters Mediators

4. Mediator (s.30 Land Act)

The Act also makes provision for the appointment of mediators, on an ad hoc basis, in an attempt to
resolve land disputes. A mediator is not required to hold any formal professional qualifications and his
or her main role is envisaged as attempting to narrow any difference between the two parties.‘ The Act
specifies that the services of a mediator may be used in negotiations between landowners and tenants
who are either seeking to gain occupancy rights or conduct a transaction relating to the land in question.

Mediators are provided for under the laws Land Act (S.89) procedure [Rule 6(6)] on adhoc basis as a
mandatory form of ADR before full scale hearing commences.

Negotiation

Black’s law dictionary defines “negotiation” as voluntary process of adjusting the existing differences
with a view to the establishment of a mutually more desirable legal relations. Negotiation allows people
to participate directly in decisions that affect them. Where negotiations become successful the needs of
both parties are considered reduced into an agreement (memorandum of understanding) which
becomes enforceable between the parties.
We all negotiate when we want something from others in legal practice, many agreements are
negotiated i.e the terms of a contract settling of disputes among others.
Unlike other mechanisms of ADR negotiations are concluded without the involvement of a 3rd party and
only through discussions between parties and their representatives, thus negotiation is a non-binding
process.
The following are the Types of Negotiation which were developed through negotiation strategies by the
theorists as explained below.

1. Distributive negotiation. This is also referred to as positional hard bargaining negotiation. It involves
generally people who have never hard previous interactive relationship nor are likely to do so again in
the near future.
2. Integrative negotiation. It is referred to as interest based or principled negotiation.it is a set of
techniques that attempt to improve the quality and likelihood of negotiated agreement by providing an
alternative to traditional distributive negotiation techniques.
In negotiation, there are four phases that negotiation process under goes through which include.
1. Pre-negotiation/preparation.
The parties acquire all documentation, data, facts and information necessary in the process.
Parties need to determine whether there is need /reason to negotiate at all and even set the date, time,
place where the process will be held.

2. Conceptualization.
Foundation of an agreement by framing of issues. Proposals and counter proposals are exchanged until
reaching a mutual agreement.
Set goals and objectives through fact finding and establishing some measures of compatibility.
3. Settling in details.
Most of the interactions between parties and individuals display a range of different negotiation styles
and tactics to make their case.
The final portion is then left to respective legal expert to put the agreement into written form of
documentation.
4. Follow up.
Just because parties have signed the memorandum of understanding it’s not enough. Any aspect of a
contract may need to be re-negotiated or changing in the circumstances. Communication between the
two is always important.

Styles /Techniques in negotiation were laid down by Richard G.Shell and include the following.
Competitive style (I win –you lose). Competitive negotiators make concessions reluctantly to weaken
other positions through damaging others. They have strong instincts for all aspects of negotiating and
are often strategic. Their style can dominate the bargaining process, competitive negotiators often
neglect the importance of relationships.
Accommodating (I lose –you win). Accommodating negotiators believe that part of winning people
over is to give them what they l want .This doesn’t only include products and services but also valuable
information. It is used when you find yourself in a weak position and the only option is to give in
gratefully. Sometimes it’s better to lose the battle and live than to fight and die.
Avoiding (I lose-you lose). Individuals who don’t like to negotiate and don’t do it unless warranted.
They tend to dodge the confrontational aspects of negotiating. It is used when the benefit of not
negotiating outweighs the value of investing time. When emotions run high and a cool down period is
required.

Compromise (I lose/win some-you lose/win some). Compromise often results into both negotiators
settling for less than what they need or want. It is used when pushed for time and have a trusty
relationship. Be careful that you win and lose the right things.
Collaborate (I win-you win). Collaborators are good at using negotiators to understand the concerns
and interests of the other parties. It is used when the value in the negotiation is substantial, the
relationship is long term and there is a high risk for both parties.

Advantages of Negotiation.
 It saves time.
 Cost saving.
 Restoration of relationships.
 Confidentiality or privacy.
 Informal procedure.
 Parties control the process.
 Voluntary and free.
 Memorandum of understanding can be enforced.

Disadvantages of negotiation.
 Parties may not be equal in status and power
 Parties may not come to a settlement.
 Lack of legal protection of parties to conflict.
 Not all cases are negotiated.
In Conclusion, negotiation as an integral ADR method, unfolds through preparation, discussion, and
agreement phases. Negotiation styles range from collaborative to competitive, each with distinct
advantages like flexibility but also drawbacks such as power imbalances. Understanding and employing
varied negotiation approaches strategically can enhance the effectiveness of dispute resolution.

CONCILIATION.
The Black’s law dictionary defines “Conciliation” as an ADR mechanism of dispute settlement where by a
3rd party known as a conciliator is appointed to assist the parties in reaching a mutually agreed
settlement of a dispute much as has no power to enforce it.

Conciliation process is basically governed by the Arbitration and Conciliation Act 2000particularly part V.
Section 48 of ACA provides for the application and scope of conciliation and more so
Section 49 of ACA which is to the effect that parties should follow the procedure there under.

An Account of / procedure of Arbitration.

Stage 1. Commencement of Conciliation proceedings.

Section 49 of ACA is to the effect that the party initiating conciliation shall send to the other party a
written invitation to conciliate briefly identifying the subject of the dispute.
Conciliation proceedings shall commence when the other party accepts in writing to invitation to
conciliate if the other party rejects the invitation, there will be no conciliation proceedings.
If the party initiating conciliation does not receive a reply within 21 days from the date he/she sent it will
be taken as a rejection to invitation.
Stage 2.Appointment of Conciliators.
Section 50 and 51 of ACA are to the effect that there shall be one conciliator unless the parties agree
that there shall be two or three conciliators and where there is more than one conciliator they shall as a
general rule act jointly.
In conciliation proceedings with one conciliator the parties may agree on the name of a sole conciliator
and where there are two ,each party may appoint one ,where there are 3
conciliators ,3 will appoint 2 ,and 2 will appoint one(3-2-1) or the parties may request the assistance of
the appointing authority.
Stage 3. Submission of statements to the Conciliator.
Section 52 of ACA provides that the conciliator upon his/her appointment may request each party to
submit to hi, /her a brief written statement describing the general nature of the dispute and the points
at issue.

Each party shall send a copy of the statement to the other party. Still the Conciliator may request each
party to submit to him/her further written statement to support his/her position.

Stage 4.Conduct of conciliation proceedings.

Section 53 of ACA is to the effect that the conciliator shall assist the parties in an independent and
impartial manner in their attempt to reach an amicable settlement of their dispute.
Section 54 of ACA is to the effect that the conciliator may invite the parties to meet

him/her and may communicate with them orally or in writing.

Section 55 of ACA is to the effect that when the conciliator receives factual information concerning the
dispute from a party he shall disclose the substance of that information to the party.
Section 56 of ACA provides that parties shall in good faith co-operate with the conciliator.
Section 57 of ACA provides for suggestions by parties for settlement of disputes with the conciliator.
Section 59 of ACA provides that the settlement agreement shall have the states and effects as if it’s an
arbitral award.
Stage 5.Termination of conciliation proceedings.
Section 61 of ACA is to the effect that conciliation proceedings shall be terminated by the signing of the
settlement agreement by the parties, by another declaration that conciliation is nolonger possible.

The following are the advantages of conciliation as I labour to explain

 Maintains relationships.it focuses on maintaining or repairing relationships between parties.

 Voluntary process. Both parties willingly participate, fostering a cooperative environment.
 Neutral third party. A conciliator assists in guiding discussions and finding common ground without
imposing a decision.
 Confidentiality. Similar to mediation, discussions are confidential, providing a private setting for
resolving disputes.
 Flexibility. Parties have control over the process and outcome, allowing for creative solutions.

The following are the disadvantages of conciliation as I labour to explain.

 Dependency on the Conciliator. Success heavily relies on the skills and neutrality of the conciliator

 Unequal participation. One party might dominate the process, hindering fair negotiations.
 Non-binding decisions. Agreements reached through conciliation might not be legally enforceable
without formalization.
 Potential dreadlock. Similar to negotiation, dreadlocks can occur if parties cannot find common
ground.
 Limited legal expertise. Unlike arbitration the Conciliator may not have the legal expertise to advise on
the complex legal matters.
In Conclusion ,the arbitration process ,encompassing stages from initiation to award ,offers flexible and
confidential alternative to litigation .Its advantages include efficiency ,expertise of arbitrators ,and
confidentiality ,but challenges may arise in enforcement and potential cost. Balancing these aspects is
crucial in harnessing arbitration’s potential as an effective dispute resolution mechanism.

Summary procedure

Plaint or 36
Affidavit in support

Summary of Evidence

Summons in summary or 36 r2

Application for Directions Order 11A

Affidavit of service

Defendant

Application to defend

Defence ord 9

Summary of Evidence

Hearing notice

0riginating summons

1Originating summons

2 application to leave to appear and defend

Done by Notice of motion or 36 r 3

3 Affidavit in support

4 Application for judgement against the defendant or36 r 3(2)

5 Application to set a side default judgment and decree

By notice of motion o 36 r 11

6 Affidavit in support

7 Application to set aside dismissal of suit

Notice of motion or 9 r 23 and or52 r 1,2,8,3

8 Affidavit in support

9 Application to release property from attachment or 22 r 55(1), 56, 57 and or52 r 1 and 3

10 Affidavit in support

11 Application for a temporary injunctio

Chamber in summon or 41 r1and 2 plus s.98 cpA

12 Affidavit in support

Summary of Evidence

13. Application for security for costs order26 r 3

14 Affidavit in support

Defendant

1Application for leave and defend the suit

Notice of motion

2. Affidavit in support

Application for oder of ganshee oder 23 r 1 and 10

Affidavit in support

Affidavit in replay

Summary of Evidence

Notice of appeal.

Order 11A Directions of court

In order to manage parties' conduct of civil action and to ensure that all preparations before trial will be
conducted in a proper manner, a hearing takes place before the court so that the court can give the
appropriate directions to the parties to prepare the case for trial. Summons for directions are a new
development in civil procedure. They are provided for the 2019 amendment through insertion of Order
11A. They are not case commencing procedure but are merely case management procedures. Where
the suit has been instituted by way of plaint, Summons for Directions are taken out within 28.days from
date of last rejoinder (Order 11a rule 1 sub rule 2. If the plaintiff doesn't take out summons the suit
abates-Order 11A rule one sub rule 6.

In CC Chandra and associates limited y URA H.C.C.S 917 of 2019 Justice Mubirum held that since the
summons for directions had not been taken out by the plaintiff, the.suit abates.
In Simbamanyo Estates Limited and anor v Equity Bank and Meera Investments HCCS 837 of 2020 Equity
bank sold Simbamanyo house to Meera investments for

failure to repay loan. The sale was contested. The lawyers of Meera investments arqued that the
plaintiffs had not taken out summons for directions. It was held that the suit abated for failure to take
out summons.

There may be instances when a matter is for mediation and its within 28 days without

taking out summons. In Kasirve y Ahumuza Alias Tasha 2020 UGHCCD 222, It was held that parties are at
liberty to request for a matter to be referred to mediation within the period allowed to acquire
summons for directions. When parties go for mediation, they may not be able to comply with O.11A to
file summons for directions because the.matter would have been referred to mediation.

Order 11a rule 1 sub rule 4 provides for the exceptional circumstances

1. Where a default judgment has been applied for. Order 11A rule 1 sub rule 4(a)

In Kaginmu and others y Sekatawa and others Miscellaneous appeal 2020/25)) in the case, the
appellants argued that the deputy registrar had misdirected in finding that their.earlier suit in the high
court had abated. They contended that they had applied for discovery of documents and had applied for
default judgement. The Court recognized the arguments as exceptions established under Order 11A rule
1 sub rule.4(a) and Order 11a rule 1 sub rule 5

Order 11A rule 1 sub rule 5 proides that the 28 days within which one has to apply for.summons for
directions maybe extended where the party has to make a discovery of.some documents.

In the instance that the suit abates, the plaintiff may file a fresh suit- Order 11A rule 1.sub rule 7

In Seruwu Jude v SWANGZAVENUE LIMITED 2021

The summons for direction procedure is intended to enable court determine and provide guidance to
the parties on what further steps need to be taken in order to effectively prepare for trial. Order 1IA rule
2 of The Civil Procedure (Amendment) Rules, 2019 requires the plaintiff within 28 days after the
pleadings are closed, to take out a summons for directions seeking the orders necessary for the conduct
of the trial. The parties will then attend court for the necessary directions for just.