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NEGOTIATION
Negotiation is a process by which two or more parties attempt to come to an agreement
which meets their needs. The ultimate goal of negotiation is to find a solution that satisfies
the interests of all parties involved, avoiding potential disputes.

Article 126 (2) (d) of The Constitution of the Republic of Uganda, 1995 favors the
promotion of reconciliation between parties though the amicable adjustment of disputes.

Negotiations are normally concluded with making a Settlement Agreement or

Memorandum of Understanding or Negotiation Agreement. Justice Stephen Mubiru in
Dilipkumar P. Patel and Others v. Kashyapkumar B. Patel and Others
Miscellaneous Application No. 0768 of 2021 stated that, “a settlement agreement is
nothing more than a contract. A settlement agreement is the parties’ document. It will
reflect whatever the parties have agreed to.”

Key Elements of Negotiation:

1. Parties: Negotiation involves two or more parties with distinct goals and interests.
Each party seeks to advance its interests while recognizing the importance of the
other party's concerns.
2. Position (What I want): This is described as a demand. Your position is
something you have decided upon. Your interests are what caused you to make
such decision.
3. Interests (Why I want it): Both parties will have their own “interests” pertaining to
the same issue. Negotiation may be used to balance out these diverse “interests”,
where both parties can work together to achieve the best solution for themselves.
4. Options: Negotiators explore various options and alternatives to address the
interests of both parties. This brainstorming process allows for creative solutions
and compromises.
5. Compromise: Negotiation often requires a willingness to compromise.
Compromising b/n positions by balancing interests is unlikely to produce beneficial
agreements.
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6. Communication: Effective communication is vital in negotiations. It involves

active listening, clear expression of ideas, and open dialogue to foster
understanding and trust among the parties.

7. Power dynamics: Negotiations can be influenced by power imbalances between

parties. Recognizing and managing these power dynamics is crucial to ensure a
fair and balanced process.

Negotiation Strategies

 Collaborative/ Cooperative (Win-Win): Parties work together to find a solution

that satisfies the interests of all involved. Focus on reaching agreement that is fair
& acceptable/reasonable to both sides.
When to use it:
i. Long-Term Relationships: Where the parties anticipate ongoing interactions
and want to preserve a positive relationship, a collaborative approach is
often more appropriate.
ii. Shared Interests: When there are common interests between the parties, a
collaborative approach allows them to capitalize on those shared goals.
iii. Rebuilding Trust: If there is a need to rebuild or establish trust between the
parties, a collaborative approach is essential.
iv. Maximizing Joint Gains: In situations where there is potential for joint gains
and a positive-sum outcome, a collaborative approach is beneficial.
 Competitive (Win-Lose): In this approach, each party pursues their interests
aggressively, often leading to one side gaining at the expense of the other. Focus
is on own position and on winning, getting possible outcome for client
When to use it:
i. High Stakes: In situations where one party's gain is directly offset by the
other party's loss, a competitive approach may be more appropriate.
ii. Lack of Trust: When there is a history of mistrust or a low level of trust
between the parties, a competitive approach may be chosen.
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iii. Non-Repetitive Transactions: In situations where the parties are not likely
to engage in future transactions or have an ongoing relationship, a
competitive approach may be more acceptable.
iv. Differing Values or Goals: If the parties have fundamentally different values,
goals, or priorities, a competitive approach may be more appropriate
 Compromising: Parties find a middle ground on certain issues to reach an
agreement. Compromiser adopts a negotiating stance which involves a little bit of
winning and of losing.
When to use it:
i. Limited time: When time is limited, and a quick resolution is necessary.
ii. Equal Power Dynamics: Compromising is effective when the negotiating
parties have relatively equal power and neither can dominate the other.
iii. Maintaining Relationships: Compromising is beneficial when preserving or
enhancing the relationship between the parties is a priority.
iv. Issues not highly important: when the issues at hand are not highly
important to either party.
v. Multiple Issues at Stake: Compromising can be useful when there are
multiple issues on the table, and finding a middle ground on each issue is
more practical than pursuing an all-or-nothing strategy.
 Avoiding: Some negotiators may choose to avoid or postpone the negotiation to
prevent potential conflicts. It is a leave or lose-win posture, in which the
avoider’s stance is to leave-lose allowing other party to win.
When to use it:
i. Insufficient Information: If there is a lack of crucial information needed for
informed decision-making, avoiding may be a sensible choice until the
necessary data is available.
ii. Relationship Preservation: If there is a concern that negotiations could harm
the long-term relationship between the parties, avoiding may be a way to
protect the overall relationship.
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iii. Not a Priority: If the issues being negotiated are not high-priority or urgent,
avoiding may be a reasonable choice, allowing both parties to focus on
more pressing matters.

 Accommodating: One party may yield to the other's demands, prioritizing the
relationship or maintaining peace over their interests.
When to use it:
i. Relationship Building: The accommodating approach is suitable when the
focus is on building or preserving a positive relationship with the other party.
ii. Quick Resolution: The accommodating approach can expedite the
negotiation process, leading to a quick resolution when time is a critical
factor.
iii. Low Significance of the Issue: If the issue being negotiated is of low
significance or doesn't significantly impact the overall outcome,
accommodating can be a practical choice to demonstrate flexibility.

STEPS BEFORE ACTUAL NEGOTIATION PROCEEDINGS

1. Preparing for the Negotiation-

 A thorough knowledge of the facts, the law and the procedure relevant to a
particular case is vital.
 Setting bargaining objectives. The range of objectives includes a top line objectives
(the best achievable outcome); a bottom line objectives (the lowest acceptable
outcome
 Assessing the other side’s case- assumptions as to how other side is likely to react
to your demands should be tested. Here, you apply BATNA. BATNA, stands for
Best Alternative To a Negotiated Agreement. In other words, if the negotiations
were to break down and you failed to settle, what would you be left with?.
Identifying your BATNA helps you to decide your ‘resistance point’ in the
negotiation. Developing your own BATNA might involve, for example, pressing
ahead with litigation procedures simultaneously with trying to negotiate an out-of
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court settlement. BATNA enables you to calculate whether going to trial will give
you a better outcome than settling for what the other side is offering you
 Assessing strengths and weaknesses of your case.

2. Developing a Strategy

Develop a strategy depending on the nature of dispute at hand. Choose from the variety
of the Negotiation Strategies (Discussed above)- Collaborative/ Cooperative,
Competitive, Compromising, Accommodating.

3. Correspondence

It may be wise to suggest a meeting when you have developed a strong enough case to
be able to take advantage of face-to-face contact. In many cases you might start by using
correspondence. You can invite the opposite party for a negotiation meeting by way of
letter or email or any practical way. Suggest natural place and venue, How many people
from each side will be attending.

STARTING NEGOTIATION PROCEEDINGS

Preliminary Matters

 Introductions- Both parties introduce each other.

 Who will open the negotiations? - Usually the claimant
 Opening statement - establishing the framework for negotiation.
 Without prejudice negotiations. If the parties agree that their negotiations are held
“without prejudice”, evidence of what was held during the negotiations cannot be
used in court. This because such information is considered privileged and can not
be used as evidence. 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
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prejudice to the position of each of the parties in the event that the negotiations
failed. That, if the negotiations failed and the dispute proceeded, neither party
should be able to rely upon admissions made by the other in the course of the
negotiations.

Discussion stage

Demonstrate that you have heard and understood what the other side has said even if
you do not agree with them.

 Listen and observe carefully when the other side is speaking or answering your
question
 Do not allow them to use diversionary tactics
 Spell out the weaknesses of their position firmly and calmly.
 Be assertive, not aggressive

Bargaining Stage

Bargaining involves the trading of concessions.

 You might bargain item by item or clause by clause in multi-issue cases

 Compromise is achieved by both parties moving from their original positions.
 Both sides moving from their opening positions
 Take appropriate notes of offers and concessions

Useful phrases for compromising during the Bargaining Stage;

 I see your point, however don’t you think that…

 Try to see it from my clients point of view…..
 I understand what you are saying but…
 How flexible can you be on that?
 I am ready to agree if you can…..
 If I agree, would you be willing to..?
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 We would be willing to.., provided that…

THE END: CLOSING A NEGOTIATION

 Summarise the key points reached in the discussions

 Confirm what has been agreed
 Prepare an agreed written summary

When a dispute relating to legal rights is settled it will normally be in the interests of both
parties to record the outcome in a form that is legally enforceable.

Before formulating the agreement, check that all aspects have been agreed ie. dates for
implementation.

Negotiations are normally concluded with making a Settlement Agreement or

Memorandum of Understanding or Negotiation Agreement. Justice Stephen Mubiru in
Dilipkumar P. Patel and Others v. Kashyapkumar B. Patel and Others
Miscellaneous Application No. 0768 of 2021 stated that, “a settlement agreement is
nothing more than a contract. A settlement agreement is the parties’ document. It will
reflect whatever the parties have agreed to.”

………………………………………………………………………………………………………

PROFESSIONAL ETHICS IN NEGOTIATION

1. You must act in your client’s best interests. In Nilefos Minerals Ltd vs. Abmak
Associates HCMA 60 of 2014 court noted that an advocate should to act in the
client’s best interest.
2. You must act within your client’s instructions. The advocate has a duty to protect
and defend the client’s rights per the instructions given. In Lobo v. Saleh Salim
and others, it was stated that, “....an advocate who appears for a client in a
contested case is retained to advance or defend his client’s case.
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3. You must maintain client confidentiality. Justice Stephen Mubiru in Dilipkumar P.

Patel and Others v. Kashyapkumar B. Patel and Others Miscellaneous
Application No. 0768 of 2021 stated that a Settlement Agreement is confidential
and its terms can be kept confidential, a consent judgment on the other hand is a
public document that can be accessed by anyone. Therefore, the settlement terms
included in a consent judgment will not remain secret.
4. You must act honestly and with integrity.

Important to Note:

 Counsel should be mindful of the statutory time limitations for filing suits at the time
of starting and also deciding on when negotiations should end. In Peter Mangeni
t/a Makerere Institute of Commerce v/s DAPC SCCA No. 13 of 1995 court
established that, it is trite that negotiations between parties to a dispute have no
effect on Limitation. A party with a claim should file a suit while negotiations
continue to avoid the claim being caught up by the law of Limitation.
 If there was a pending suit in court and the parties seek to undergo negotiation,
the contents of a settlement Agreement must be included in a consent judgement
for the parties for it to be enforceable. Under Order 25 Rule 6 of The Civil
Procedure Rules, where it is proved to the satisfaction of the court that a suit has
been adjusted wholly or in part by any lawful agreement or compromise, the court
may, on the application of a party, order the agreement, compromise, or
satisfaction to be recorded, and pass a decree in accordance with the agreement.
Justice Stephen Mubiru in Dilipkumar P. Patel and Others v. Kashyapkumar B.
Patel and Others Miscellaneous Application No. 0768 of 2021 noted that
“Settlement provisions that are not set forth in the consent judgment cannot be
enforced by court as its decree. The terms must be made part of the consent
judgment for them to become enforceable as part of the decree. To ensure
enforcement by court, the parties must actually put the settlement terms into a
consent judgment that directs the parties to perform those obligations.”
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MEDIATION
Rule 3 of the Judicature (Mediation) Rules;

Mediation is “a process by which a neutral third person facilitates communication between

parties to a dispute and assists them in reaching a mutually agreed resolution of the
dispute”.

In Enoth Mugabi v. Palm Developments (U) Ltd (Miscellaneous Application 01 Of

2016) the issue before court was whether court annexed mediation amount to “any other
proceeding” within the meaning of O.25. r.1 (1) CPR). Court held that Mediation is
alternative dispute resolution process that does not amount to “any other proceeding”
within the meaning of O.25. r.1 (1) CPR)

A mediator assists the parties to:

 Identify the issues in dispute.

 Explore and generate options.
 Communicate with one another.
 Reach an agreement regarding the resolution of the whole or part of the dispute.

It is a confidential and informal way to resolve a dispute with the help of a neutral third
party.

The mediator works with both (all) parties to help them reach a mutually agreeable
solution to their differences.

The mediator has no authority to impose an outcome on the parties if they fail to reach
agreement, and both sides are free to walk away from the process at any time.
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TYPES

Free-standing (private) mediation.

Article 126 (2) (d) of The Constitution of the Republic of Uganda, 1995 favors the
promotion of reconciliation between parties though the amicable adjustment of disputes.

Mediation centers or programs organized without any court connection. Eg; CADER,
ICAMEK, PRACIS.

Agreements arising out of private mediations are enforced like contracts. Justice Stephen
Mubiru in Dilipkumar P. Patel and Others v. Kashyapkumar B. Patel and Others
Miscellaneous Application No. 0768 of 2021 stated that, “a settlement agreement is
nothing more than a contract. A settlement agreement is the parties’ document. It will
reflect whatever the parties have agreed to.”

Court-annexed mediation

Used within the court system and controlled by the court. Often judges or other court
officials serve as mediators.

Order 12 Rule 2 of the CPR where parties do not reach an agreement, the court may, if
it is of the view that the case has a good potential for settlement, order alternative dispute
resolution before a member of the bar or the bench, named by the Court.

The Judicature Mediation rules, 2013 under rule 4 (1) provides that regardless of
the intensity or complexity of the dispute, the court shall refer every civil action for
mediation before proceeding for trial.

In Enoth Mugabi v. Palm Developments (U) Ltd (Miscellaneous Application 01 Of

2016) the issue before court was whether court annexed mediation amount to “any other
proceeding” within the meaning of O.25. r.1 (1) CPR). Court held that Mediation is
alternative dispute resolution process that does not amount to “any other proceeding”
within the meaning of O.25. r.1 (1) CPR)
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Mediation proceedings can only fall under the ambit of “other proceedings” if the
proceedings where successful and a consent judgement entered. In Enoth Mugabi v.
Palm Developments (U) Ltd (Miscellaneous Application 01 Of 2016) court found that
there was no settlement between the parties and thus no outcome legally binding on the
parties recorded as a consent judgment. If that had been the case, the process would
have amounted to “other proceedings” legally and officially recognized and enforceable
by court within the meaning of O.25 r.1 CPR

Cases are referred to mediation by courts only. Rule 8, 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

Self-Determination.

Participants should be free to choose their own dispute resolution process and are
encouraged to make their own decisions on all issues.

Informed Consent

Informed consent is supported when mediators disclose or offer to disclose the

information reasonably necessary for informed decisions on whether to use the mediator
and whether to participate in the specific mediation process. Guideline 4(4) of the
Guidelines for Mediators under Schedule 2 of the Judicature Mediation Rules 2013
show that a mediator shall not act or continue to act in mediation where he or she has a
conflict of interest unless all the parties specifically 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 in attendance. Guideline 2 of the
Guidelines for Mediators under Schedule 2 of the Judicature Mediation Rules 2013
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Confidentiality & 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
proceeded, neither party should be able to rely upon admissions made by the other
in the course of the negotiations.

The mediator will conduct the mediation on a confidential basis, and will not voluntarily
disclose information obtained through the mediation process except to the extent that
such matter is already public or with the consent of the parties. This means that at the
point the information is in form of a settlement agreement and not yet endorse by court
as a consent judgement, the information remains confidential until made a consent
judgement. Justice Stephen Mubiru in Dilipkumar P. Patel and Others v.
Kashyapkumar B. Patel and Others Miscellaneous Application No. 0768 of 2021
stated that a Settlement Agreement is confidential and its terms can be kept confidential,
a consent judgment on the other hand is a public document that can be accessed by
anyone. Therefore, the settlement terms included in a consent judgment will not remain
secret.

An injunction can be obtained, in certain circumstances, to restrain breach of this

obligation- Venture Investment Placement Ltd v Hall.
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Impartiality

Mediators should make good faith efforts to avoid conflicts 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.

BENEFITS OF MEDIATION

 Reduce court backlogs.

 Reduce time necessary for contract enforcement.
 Reduce costs of dispute resolution (e.g. by limiting court and legal fees).
 Increase number of in-court settlements (facilitated by judges or mediators).
 Reduce formality and complexity of the existing processes.
 Reach geographically dispersed population. • Increase satisfaction with dispute
resolution.

MODELS OF MEDIATION

Facilitative mediation

The mediator does not give an opinion on the likely outcome at trial or legal issues, but
only seeks to help the parties find solutions to the underlying interests or problems giving
rise to the litigation.

Evaluative mediation

Provide the parties with an evaluation of the strengths and weaknesses of their case with
respect to their legal positions.

What constitutes evaluative behavior ?

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 Predictive behaviour. This involves giving a view on what will happen in court or
other forums.
 Directive behaviour. The mediator directing the parties towards certain outcomes
or solutions.

Transformative mediation

Aims to empower the parties involved to make their own decisions and take their own
actions. The parties are very much in charge of both the content (the substantive issues)
and the process, and the mediator works to support both as their conflict unfolds and the
process and relationship builds.

Narrative Mediation

People in conflict will tell conflict stories that help them make sense of the situation, the
other person and themselves. Narrative mediators believe that for every conflict story
there is an alternative story that can make co-operation and trust more available.

MEDIATION PROCEDURE IN THE HIGH COURT.

 Every action may, upon being set down for trial, be referred by the trial judge for
mediation.
 When a matter has been referred to mediation, the mediator appointed shall collect
the record from the court.
 Upon collection, the mediator contacts parties and fixes a date of the meeting.
Rule 7 Judicature Mediation Rules provides that parties are to be notified of the
commencement date of mediation by court within fourteen days after pleadings
are complete.
 The parties, once summoned, can appear before him with or without their
representatives. There is no justification for non-appearance. Rule 14 JMR- Failure
of party to attend attracts costs. In S.S Enterprise Ltd & Anor vs. Uganda Revenue
Authority HCCS No. 708 of 2003 counsel for the URA argued that only the Board
of Directors of the URA had the power to settle a case via mediation so it was not
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possible for URA to submit to mediation. It was held that internal institutional
processes were not a good reason to avoid mediation.
 Mediation being a confidential process, the mediator should not keep any record
used during the process. 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. In Oola Peter and Others v. Lanen Mary Civil
Appeal No. 0018 Of 2017 court said- When parties agree to conduct and
participate in a court annexed mediation for the purpose of compromising, settling,
or resolving a dispute in whole or in part, except as otherwise provided by those
rules, evidence of anything said or of any admission made in the course of the
mediation is not admissible in evidence.
 If mediation concluded, whether successful or not the mediator has to submit a
report within ten days after concluding mediation.- Rule 15 JMR.
 Where a settlement has been reached, it shall be registered in court and shall have
the same effect as a judgment. Rule 16(1) JMR, Where the parties resolve the
issues that are the subject of mediation, the parties shall enter an agreement
setting out the issues on which they agree.
i. Rule 16(2)- The agreement shall be in writing and signed by the parties. In
Oyugi Martin V. Oyoo Anthony CIVIL APPEAL NO. 0019/2012, Hon.
Lady Justice Margaret Mutonyi stated that For a judicial officer to issue a
consent judgment, all parties involved in a suit or the agreeing parties must
indicate that the agreement has been mutually agreed on and that they find
it acceptable………To avoid allegations of fraud, or ignorance of material
facts, the consent agreement should be in writing or where it is not in writing,
the court must reduce it in writing in the exact words of the parties and they
should sign on the agreement.

ii. Rule 16(3)- be filed with the registrar, magistrate or authorised court
officer responsible for mediation in the court. In Oyugi Martin V. Oyoo
Anthony CIVIL APPEAL NO. 0019/2012, Hon. Lady Justice Margaret
Mutonyi stated that “It is an agreement which is entered before the judge
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hears and determines the case basing on the law and evidence adduced
before him. In other words it is the agreement between the parties but
facilitated by court to give it legal effect and enable execution in case one
party breaches the agreement as it puts to end litigation in the case.

iii. Rule 16(4)- be endorsed by the court as a consent judgment. In Oyugi

Martin V. Oyoo Anthony CIVIL APPEAL NO. 0019/2012, Hon. Lady
Justice Margaret Mutonyi stated “The judicial officer in the case is not
expected to merely endorse the agreement. He or she must be satisfied that
the parties understand the terms of the consent, agree to them as their own
terms and must sign on the agreement………. Failure to understand fully,
or having a misconception of the terms of the consent renders it null and
voidable at the earliest opportunity.”

In Attorney General & Another versus James Mark Kamoga & Another-
The Consent judgement once endorsed by court it becomes a judgement and
it’s binding on all the parties therefore parties are estopped from asserting
different positions from the stipulated agreement.

 There is no appeal against a mediated settlement. Rule 17 JMR . No appeal from

orders under these Rules. In Attorney General & Another versus James Mark
Kamoga & Another- it is a well settled principle that a Consent Judgment has to
be upheld unless it is vitiated by a reason that would enable a court to set aside
an agreement, such as fraud, mistake, misapprehension or contravention of court
policy.
 In the event that mediation fails, the mediator should return the record to the court.
Rule 16(5)- Where there is no agreement subject to mediation, the mediator shall
refer the matter to the court.
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PRACTICAL STEPS IN THE MEDIATION PROCESS.

Step 1- introduction or intakes

Step 2- Develop and Maintain Ground rules For Process

Step 3- Telling the story or information gathering.

Step 4- Identifying facts and issues.

Step 5-Identifying alternative solutions.

Step 6- Revising and discussing solutions.

Step 7-Reaching an agreement.

Step 8-Revising and drafting the final agreement.

THE ROLE OF A LAWYER IN MEDIATION

Pre- Mediation

 Explain to the Client the mediation and the process that follows.
 Assist the client to formulate the key points of the mediation.
 Assist the Client and discuss the issues related to the dispute
 Ensure that all the relevant documents are available and prepared prior to
mediation.
 BATNA

During Mediation

 He guides and advises his client as to how to present the issues during the
procedure.
 In some cases, the advocates may also represent his clients and negotiate on their
behalf.
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 The advocate guides the client in understanding the legal aspects of the proposals
made.
 They help formulate proposals beneficial for his client.
 The advocates can come up with creative solutions in order to solve the disputes.
 They also save their client from entering into a pressured settlement.

Post- Mediation

 If the process is successful, then the advocate prepares the agreement that the
clients have settled upon.
If an advocate signs for the client, the client is bound by the signature. In Nsimbe
and two others v. Caltex (U) Ltd and three others, H.C. Misc. Application No.
144 of 2013, where a party had given all the requisite instructions to the lawyer to
represent them including signing for them before the consent judgment was
entered, the party who gave the instructions is bound by the signature of his
advocate on the consent judgment.
 If the parties have settled on an agreement, then the advocate ensures that the
consent decree is executed. The consent decree must indicated all the relevant
settlements from the settlement agreement. Justice Stephen Mubiru in Dilipkumar
P. Patel and Others v. Kashyapkumar B. Patel and Others Miscellaneous
Application No. 0768 of 2021 noted that “Settlement provisions that are not set
forth in the consent judgment cannot be enforced by court as its decree. The terms
must be made part of the consent judgment for them to become enforceable as
part of the decree.
 If the mediation is not successful, then the next best remedy for the client to
approach the court. An advocate is required for the purpose of litigation. In Oyugi
Martin V. Oyoo Anthony CIVIL APPEAL NO. 0019/2012, Hon. Lady Justice
Margaret Mutonyi stated that, If the party does not agree, then litigation must
proceed in court as entering judgment against that person’s wishes would result in
a violation of his legal rights to be heard.
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DUTIES OF THE MEDIATOR.

 The mediator shall explain his role and define the process of mediation;
 Develop And Maintain Ground rules For Process
 To summon the parties and make an effort to schedule the conference at a time
that is convenient with all participants;
 Maintain confidentiality;
 The mediator has a duty to be impartial and to advise all participants of any
circumstances bearing on possible bias, prejudice or partiality;
 Reporting the results of mediation to the Court (for court annexed mediation);
 To guide but not advise the parties during the process. However, in the case of
Tapoohi v Lewenberg, a mediator was held liable for not advising parties on a
legal issue that was omitted in the mediation agreement thereby making one party
suffer loss.
 help people find the best way to resolve their problems
 encourage parties to identify the real issues
 help the parties explain those issues to each other
 identify points of agreement between the two parties
 provide an assessment of the risks of the problem escalating
 seek a resolution that allows both parties to put the issues behind them.
 help people find a way through their problem that may not seem immediately
apparent.
 Rule 6, The Judicature Mediation Rules- Mediators are allowed to request
additional information from a party if it is considered relevant to the mediation.