MEDIATION OF CORPORATE GOVERANCE DISPUTES THROUGH COURT ANNEXED MEDIATION A CASE STUDY FROM UGANDA

1

• MEDIATION OF CORPORATE GOVERANCE DISPUTES THROUGH
  COURT ANNEXED MEDIATION A CASE STUDY FROM
  UGANDA
• BY JUSTICE GEOFFREY KIRYABWIRE

2
INTRODUCTION

• Renewed interest in corporate governance in
  Uganda as a result of-
• Privatization / liberalization of economy
• Creation of a commercial court in 1996
• - Proactive judge
• - Efficient, expeditious and cost effective means
  of adjudication
• - use of methods other than litigation

3
INTRODUCTION

• New laws which provide for corporate governance
• Institute of corporate governance of Uganda
  in 1998
• inevitable rise of corporate governance
  disputes going to court

4
SUITABILITY OF MEDIATION

• A tendency to litigate disputes as court
  rules do not provide for mediation
• 53.75 of court users found delays in court
  a serious problem

5
SUITABILITY OF MEDIATION

• African customary mediation
• judgment by agreement Vs judgment by decree
• tradition court hostility to
  private/alternative dispute resolution
• general return to mediation based justice in
  Uganda

6
EVOLUTION OF COURT ANNEXEXED MEDITION

• Create a set of court mediation rules
• 1998 amendment of civil procedure rules new
  order 12 on scheduling conference and
  alternative dispute resolution
• 1999 CJRP study recommended use of ADR and
  donor funding

7
MEDIATION PILOT PROJECT 2003-2005

• The Constitutional Commercial Division
  (Mediation Pilot Project Rules) Practice
  Direction 2003
• The Commercial Court Division (Mediation Pilot
  Project) Rules 2003
• Funded by CJRP

8
MEDIATION PILOT PROJECT 2003-2005

• attempt at mediation mandatory before
  litigation
• cases referred to institutional mediation under
  CADER
• Costs of mediation covered by CJRP
• Successful mediation registered as consent
  judgment of the court

9
PERFORMANCE OF PILOT PROJECT
Period 03rd October 2003 to
05thAugust 2005 source CADER
10
PERFORMANCE OF PILOT PROJECT
11
PERFORMANCE OF PILOT PROJECT

• Challenges
• Lack of mediation awareness and education
• SS Enterprises V URA
• Perceptions that litigation is better than
  mediation
• Verner V Gen Investment Trust 1894
• Mediation seen as time wasting
• Sustainable funding of mediation

12
Creation of a Multi door court House

• Mediation by
• CADER
• Registrar of the court
• Judge of the court
• A Private mediator

13
Creation of a Multi door court House

The journalist here did not see mediation as the
role of a Judge
14
Creation of a Multi door court House

However the case was settled through Judge
assisted mediation
15
CONCLUSION

• The experience in Uganda will show that court
  annexed mediation can work in the settlement of
  Corporate Governance Disputes. However the
  Uganda experience has also shown that for
  mediation to succeed it has to be made part of
  the rules of procedure of the court so that
  parties are clear that filing a case in court
  will not mean automatic litigation. There is
  still however need for greater awareness of
  mediation as a dispute resolution mechanism which
  is suitable for most commercial disputes
  including those of Corporate Governance.

16

• THANK YOU
• FOR LISTENING
• TO ME