Will court-annexed mediation help reduce the backlog of cases?

Monday July 27 2020

A Rwandan commercial court. Mediation would

A Rwandan commercial court. Mediation would help reduce the backlog of cases. PHOTO | FILE  

JEAN NEPOMUSCENE MUGENGANGABO
By JEAN NEPOMUSCENE MUGENGANGABO
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Despite the development of alternative dispute resolutions systems such as Abunzi and Kigali International Arbitration Centre and other measures which limit the number of cases ending in litigation, many courts are still overloaded with cases remaining unsettled for more than six months, a period prescribed by the law as the time limit for deciding a case.

In crafting more solutions to the courts' overload, in early 2018, parliament passed a new Civil Proceedings Act which introduced the “Court-Annexed Mediation,” a mechanism by which Court Staff ( judges and registrars) and accredited private practitioners can mediate on cases that have been already filed to courts.

According to the Civil Proceedings Act, when a court registrar conducts a pre-trial conference-that is a litigation phase during which s/he verifies whether parties to the case stated well issues on which they need a ruling, submitted supporting evidence and provided legal provisions relevant to their case- s/he suggests the parties to settle their case by mediation.

If the parties show interest in such a mechanism, the registrar will offer her/himself as a mediator but informs the parties that they also have an option of being mediated by a judge appointed by the president of the court in which the case was filed, or by an accredited private mediator they appoint with the support of the same court.

In case parties do not use that option at the level of the pre-trial conference, they would still have a chance to apply for it at the trial level with the encouragement of the judge who would also mediate on the case upon the consent of parties or the case is mediated by another judge or a private mediator.

In order to clear the path to the Court-Annexed Mediation, on December 5, 2019, the former Chief Justice, Prof Sam Rugege is- sued Instructions Governing Court-Annexed Mediation in Civil, Commercial, Labour and Administrative cases, which were published in the official gazette on the 17th January 2020.

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However, the mechanism has not been fully operationalised because so far, there are no private mediators accredited by the Judiciary.

But this issue might be soon catered for because in June, the current Chief Justice, Dr. Faustin Ntezilyayo, called qualified mediators to apply for accreditation.

As far as its principles are concerned, mediation could be the best dispute settlement mechanism because it facilitates the participants to discover the root causes of their dispute.

It is also a good process because it allows parties to express their emotions such as anger, disappointment, sadness, trauma, which facilitates parties to be discharged not only of the legal issues that opposed them but also of the emotional pain associated with such issues.

The right of parties to appoint their mediator increases their chance to be heard by a specialized practitioner in the field of their dispute. It also gives better satisfaction to parties because it is privacy-friendly and a very collaborative process allowing parties to find solutions to their issues.

At the same time, it can get to a solution within a less period compared to what typical litigation takes.

However, several challenges can be expected to rise in relation to the Court-Annexed Mediation. For example, bad-faith driven parties could use it as a delay tactic.

Or, seeing as it will require parties to the dispute to pay, many will still troop to the courts, adversely affecting the workload.

Jean Nepomuscene Mugengangabo is a corporate commercial lawyer, and a Partner at Landmark Advocates in Kigali

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