Dealing with case backlog in commercial court division

On Thursday 15 February 2024, Daily Monitor reported that Commercial Court case backlog locks up Shs85 trillion.  In the past approaches such as court annexed mediation were adopted under the Judicature (Commercial Court Division) (Mediation) Rules, 2007 and later Judicature (Mediation) Rules, 2013.

All the rules emphasised mediation, which is a form of Alternative Dispute Resolution that was hoped would reduce case backlog in the Judiciary and for the purposes of this article in the commercial division of the High court.

In as much as ADR has potential to reduce case backlog, resorting to it should be with strategic and innovative approach. We should first ascertain why mediation did not work in the commercial court as had been hoped and then roll it together with other forms of ADR like arbitration through drastic, strategic and deliberate legislative reforms and approaches which I propose in this article as follows;

There is need to designate a mediation registry within commercial court headed by a judge who shall be the Alternative Dispute Resolution focal person within the commercial court division.

He or she shall head the unit and provide overall oversight. He or she shall be readily available to the parties who wish to reduce their mediation settlement into a consent judgement of court.

Make mediation compulsory. All matters should first go through mediation as a condition for filing a civil suit in the commercial division registry.

Mediation report showing areas of disputes resolved or attempts by both parties to resolve the dispute should be part of the suit documents filed at commercial court registry by the litigants. 

The mediation should be concluded within ninety days as opposed to 60 days previously provided for under the mediation rules. Speedy disposal of matters in the mediation registry will entail appointment of mediators who should be paid basing on the number of cases handled and concluded. Over time, many advocates and non advocates have gone through mediation and arbitration training and can competently serve in this capacity either on full time or part time basis.

Where the dispute is not resolved through mediation, parties who are able to meet cost associated with arbitration should be encouraged to have their disputes arbitrated under the auspices of Centre For Arbitration and Dispute Resolution (CADER) or through other adhoc arrangement.

Parties should be advised at the end of mediation on the advantages of arbitration as opposed to court litigation. Simplified standard form arbitration agreement should be made readily available to the parties to encourage them to arbitrate their disputes.

Where courts are faced with disputes, liberal approach should be applied in the interpretation of the dispute resolution agreements of the parties.

Jurisdictions such as Singapore and United Kingdom made significant progress in dispute resolution through arbitration because of the pragmatic, commercial, common-sense approach by their judicial system.

Integrate ICT in the alternative resolution of disputes. The growth of the internet, absence of territorial limitations and technological revolution has demanded a rethink of the traditional methods of alternative dispute resolution (ADR).

Integration of information communication technology (ICT) tools into ADR processes is necessary to meet the expectations of this technology age. 

Have in place monitoring and evaluation committee. This committee should be thin, quorum friendly and be in position to meet regularly and make appropriate timely recommendations and decisions on the progress of alternative dispute resolution within the commercial court. 

The success in commercial court dispute resolution can then be rolled out to other divisions of court after three to four years.

Mr Daniel Angualia is an arbitrator and Senior Partner of Angualia Busiku & Co Advocates. [email protected]