COURT ANNEXED MEDIATION; A REVOLUTION IN LAWSUITS

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As a lawyer or anyone who has any connection with law and courts, or simply an informed citizen, mediation is not news to him/her. The Rwandan government with its partners they are making all possible efforts to make mediation the preferable way to resolve disputes.

Court annexed mediation is one of the ways to ensure that desire to be satisfied. Seeking justice from courts is the traditional way to resolve disputes and it has left a bond with people which is not easy to tear down. Training court staff mainly, court registrars and judges to use mediation and encouraging parties to listen when they suggest them to use Court annexed mediation, this will revolutionize our lawsuits for a long-term benefit. 

‘’The Judiciary of Rwanda encourages parties to use mediation to settle cases pending before courts (court annexed mediation) or to resolve their disputes out of court. Indeed, mediation is increasingly gaining recognition as an efficient alternative dispute resolution mechanism.’’[1] Faustin Ntezilyayo the Chief Justice, mentioned this in a post on x, back in 2021 as a way to encourage the court annexed mediation as another way to settle cases pending before courts.

The law relating to the procedure of civil, commercial, labour and administrative case was amended in 2018,  created a room where a court registrar, judge, or private mediator can mediate parties at any stage of court proceedings before the final decision of the court. Afterwards, Court-annexed mediation system was endorsed by the policy adopted by the Government of Rwanda in 2022 as one of existing initiatives to build on in expanding and enhancing the use of mediation in dispute resolution.[2]

Before going further, lets discuss some important keywords in court annexed mediation. Pre-filing mediation: Also known as pre-litigation mediation, this is an attempt to resolve a case before initiating the formal legal process. Conducted prior to filing a formal lawsuit, it is a consensual process whereby the plaintiff and the respondent come together to settle the dispute amicably. Pre-trial mediation: Also known as pre-trial conference, this is a session that is conducted by an experienced registrar who looks at the case from all sides and can help concerned parties explore options to try to resolve their dispute, rather than proceed to trial.[3]

COURT ANNEXED MEDIATION as a part of Mediation has its Source within Rwandan Laws. CONSTITUTION OF THE REPUBLIC OF RWANDA as revised in 2015 and 2023, in article 11, paragraph one; In order to build the nation, promote national culture and restore dignity, the people of Rwanda, based on their values, initiate mechanisms for homegrown solutions to their problems.[4]

According to Article 27(2) of the Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure the court registrar, after agreeing with parties on all elements of the case, asks the parties if they agree to conciliation and indicates in writing whether or not they agree thereto.[5]

According to Article 28 (1) Conciliation of parties is carried out subject to special formalities and a special report is drawn up to that effect. The registrar may also refer them to private mediators or ask the president of the court to designate a judge to mediate between them if they so wish. If possible, the concerned party must be present or be represented by a person with a power of attorney given by the concerned party and which indicates that elements of the claim may be resolved through amicable settlement.[6]

According to Article Article 29, The registrar, based on the conciliation report, prepares the [7]decision of conciliation to be submitted to the president of the court. The registrar and the President of the Court or their representatives sign the decision. Such a decision is not subject to appeal and an enforcement order is immediately affixed to the decision for immediate enforcement thereof. However, if the conciliation relates only to a part of main points of the claim, the decision is issued with respect to such a part only. The registrar submits the minutes and entire file to the president of the court who in turn designates a judge to hear the case. The judge only hears the case with respect to matters for which a compromise is not reached.

According to Article 30, If parties reach an amicable settlement of all heads of the claim, the registrar draws up a report thereon, indicating that the case is definitely closed. If parties agree on a part of issues in the case, the registrar records them in the report indicating issues they have agreed upon and those which remain unresolved. The case is heard on the merits only with respect to unresolved matters. If there is no single issue in respect of which parties reach a compromise, the court registrar makes a report thereon. If there are matters in respect of which parties fail to reach a compromise, parties are notified of the hearing date, and a report thereon is signed by all parties and the registrar. All documents that make up the pretrial conference report are included in a file which is submitted to the president of the court for him/her to designate a bench of judges to hear the case. However, documents containing discussions of parties during the pretrial conference are excluded from the file if parties so agree.[8]

According to the PRACTICE DIRECTIONS NO 002/2015 OF 18/05/2015 BY THE CHIEF JUSTICE GOVERNING CIVIL, COMMERCIAL, LABOUR AND ADMINISTRATIVE PROCEDURE Article 11: Mediating between the parties at the pre-trial conference The Chief Registrar shall explain to each of the parties, separately, the advantages of mediation as well as the disadvantages of refusing mediation. He/she shall ask each party what he/she is willing to concede and notes the answer. Based on the issues raised during the pre-trial conference, the parties‟ legal submissions and the supporting evidence, the Chief Registrar may suggest to the parties what else the/she can concede. Where the parties agree, he/she records his/her position. Each party is informed of all the concessions made by the other party and asked to comment upon them. The Chief Registrar shall read to the parties, together, the concessions made by each of them and shall keep a record of them in a report. Where possible, the parties shall be present in person.[9]

When the parties reach an agreement, based on the mediation report, the Chief Registrar drafts,[10] for the President of the court, an agreed order for settlement. This order is signed by the Chief Registrar and the President of the Court or their representatives. This decision is not subject to appeal and an enforcement order shall be immediately affixed to it to allow for its enforcement. When the parties reach agreement on a divorce at the pre- trial conference, the court registrar shall prepare the minutes, sign them, have the parties sign them and shall then send them, together with the entire case file to the president of the court who shall appoint a judge to conduct a hearing on the merits and take the decision based on what was agreed upon by the parties at the pre-trial conference.[11]

In addition, according to paragraph 4&5 of Article 10 of the PRACTICE DIRECTIONS NO 002/2015 OF 18/05/2015 BY THE CHIEF JUSTICE GOVERNING CIVIL, COMMERCIAL, LABOUR AND ADMINISTRATIVE PROCEDURE on Conducting a pre-trial conference, the chief registrar asks the parties if a report can be prepared outlining the areas of agreement so that those issues can be considered as settled. When the parties accept, a specific report is drafted, signed by all parties and the Chief Registrar. The chief registrar asks the parties if a report can be prepared outlining the areas of agreement so that those issues can be considered as settled. When the parties accept, a specific report is drafted, signed by all parties and the Chief Registrar.[12]

The Mediator has conduct to follow; 1. Independence a) An intermediary must be notified before agreeing to act as an intermediary in judge that he is independent based on what he knows; in his relationships and interactions He and those with whom he has a case is going to be reconciled, and he also shows that he has nothing to do with it by any side. Independence is the only guarantee a judge or a mediator can provide so as to ensure justice is provided. When there is no independence of a mediator in the handling the case, there is a risk of the people to lose trust in justice or the capacity of mediating disputing parties. b) The mediator must certify that he is able to act as an independent mediator and he will not be overpowered by any side as long as he is connecting both sides; c) The duty of independence continues throughout the mediation process. 2. Neutrality a. Providing legal advice on any matter; b. Determining what is right from mediation; c. To make a decision on any matter pending; 3. Disclosure of benefits a. Before agreeing to be a mediator, the mediator must declare an interest all he has in the future of mediation, whether present or future or appear to exist; b. The mediator is responsible for disclosing the interest before accepting it.[13] The mediator has to remove all possible doubts, that can hinder the trust people have in them. Rwandans have a reputation of respecting those representing authority, as a mediator having the authority to guide people to reach a solution to a dipute, it should not taken for granted.

In the PERFOMANCE OF THE JUDICIARY DURING THE YEAR 2022-2023 Number of cases settled through mediation and plea bargaining. This year, 909 cases were settled through mediation facilitated by court registrars during pretrial conference (an increase of 6% over the past 4 years), while Judges facilitated mediation in 283 cases (from 73 last year).[14]

In THE PERFOMANCE OF THE JUDICIARY DURING THE YEAR 2020-2021 Number of cases settled through court mediation Courts have two mechanisms of mediation to help litigants settle their cases amicably; Cases settled during pretrial conference: This year 861 cases were settled during pretrial conference. They increased by 1% compared to the previous year where 854 cases were settled. Judges facilitated mediation. This year the number of cases in which judges helped litigants to settle their cases amicably increased by 42% making it 61 cases from 43 cases. Among the mediated cases, there was one commercial case that involved 112 defendants vs. a bank with the value of RWF 900 million. The case was mediated by the Commercial High Court and closed within six months.[15]

Edwards Mediation Academy has worked with others to bring mediation to Rwanda and, with it, systemic change to the court system and government institutions and the implementation of restorative justice programs. We have worked with Chief Justice Emeritus, Prof. Sam Rugege, and the current Chief Justice, The Honorable Faustin Ntezilyayo. With the leadership of Weinstein International Fellows Bernadette Uwicyeza, Harrison Mutabazi, and Anastase Nahabire, we have trained almost one thousand judges, attorneys, business leaders, and NGO, and government officials. We have partnered with the Kigali Bar Association, the Rwanda Bankers Association, and community leaders to bring mediation skills to the forefront for use in court-annexed mediation programs, community programs, and everyday conflict. It is but one small chapter in Rwanda’s larger story of success.[16]

In line with the National Alternative Dispute Resolution (ADR) Policy adopted by the Government of Rwanda with the aim to reduce as much as possible litigation and adjudication in handling disputes, the Judiciary of Rwanda organized a Mediation Week starting from 20th up to 24th of March 2023. The theme for this year’s week is “Mediation, the appropriate choice for your business, your family and community”. In order for the event to be successful, the Judiciary invited different stakeholders of mediation namely lawyers, legal practitioners, financial institutions, and experts in mediation. Mr. Bruce EDWARDS, Founder Edwards Mediation Academy and his wife Susan Edwards shared their experience and expertise of over 35 years in training and practicing in mediation.[17]

Discussions were held within three days (Monday 20th, Tuesday 21st and Thursday 23rd of March 2023) with a special topic for each day. On Monday March 20th (Day One), participants discussed Mediation and Mediation Advocacy Skills for lawyers, and Day 2 (Tuesday March 21st) was dedicated to Mediation on Financial Sector. The two first days were organized at Marriott Hotel. The third day, Thursday March 23, was exclusive for professional mediators. The participants shared ideas on the contribution of certified mediators in the implementation of the ADR Policy. The event took place at Crown Conference Hall, Nyarutarama. Afterwards, Edwards Mediation Academy and the Chief Justice of Rwanda awarded Certificates for newly certified mediators. Day 4 was an open mediation day in courts countrywide. The public had the opportunity to follow the first two days’ sessions via the YouTube channel of the Judiciary of Rwanda.[18]

The Chairperson of the Court Mediation Advisory Committee, Honorable Chief Justice Emeritus,[19] Prof. Sam RUGEGE in his remarks by giving a detailed background of Mediation Advisory Committee, its composition as well as highlighting the benefits of the mediation process. The Chief Justice Emeritus reiterated the role of lawyers in mediation namely to advise clients and provide them with legal assistance in the mediation process by helping them to reach to a reasonable understanding on mediation, and this has been appreciated by many parties who underwent mediation. With regard to lawyers’ behavior vis-à-vis mediation, the Chairperson categorized them in three groups: 1) combative lawyers, who are really enthusiastic, 2) passive lawyers, who only intervene when asked to provide their opinions, and 3) resisting lawyers who are reluctant or discourage their clients to resort to mediation. He gave an example of what happened in one of the Intermediate Court, where after the parties agreed before the judge to go to mediation, the lawyer told his client to forget about it ; that they would win the case. He explained that some lawyers present such attitudes for fear that they will not get their fees. The Chairperson concluded his remarks by recommending to resort to court ordered mediation and pre-filing mediation in some categories of disputes, to train lawyers and court staff on mediation benefits and to raise public awareness on the importance of mediation.[20]

Mr. Bruce EDWARDS, Founder Edwards Mediation Academy, California US, reminded that Lawyers are the stakeholders of mediation and they play a vital role for the success of mediation. Lawyers, all over the world, started by being hesitant to join mediation because either they are used to be in control of their clients or lack skills on mediation. To overcome these hindrances, the first step is to train lawyers in mediation. He winded up his note by reminding participants about the role of lawyers in mediation, which includes providing mediation statements to mediators, writing a good mediation brief, designing a process that is suitable to both parties, preparing the client to negotiations by avoiding irritating messages to them, as well as keep all parties involved in mediation. He concluded by stating that he and Susan will continue to help the Judiciary of Rwanda in its process to developing mediation practice.[21]

The Vice Chairperson of Court Mediation Advisory Committee, Justice Dr. Aimé Muyoboke Karimunda,(then),(who is now the Rector of the Institute of Legal Practice and Development) as discussant, presented to participants the current overview of mediation in litigated cases. Mediation is the best way to go for business people as it creates a healthy and sustainable relationship between partners. The financial sector would attract more investors if financial companies adopt an adequate approach to resolve conflicts with their customers. The business would also expand and be sustainable if the leadership in the sectors doesn’t waste time in litigation and adjudication. Courts would also concentrate on heavy cases for which there is need for clear and robust ruling on complex legal issues. Today, judges spend hours and hours in calculating compensations that could have been well calculated by the insurer himself.[22]

He recalled that for this judicial year for example, there are 550 insurance cases pending before Rwandan courts. Radiant Insurance Company is on top of other companies with 212 cases representing 38%, Sanlam Insurance Company with 143 cases (26%), Sonarwa has 80 cases or 14% and Prime Insurance Company has 61 cases or 11%. These cases create case backlog with the consequence of jeopardizing the rights of victims (widows, orphans, etc.) who are seeking insurance compensation. Even when the insurance company wins the case, it will have frosen its money for all the years it will be waiting for a court ruling. Justice Aimé Muyoboke Karimunda commended however the positive move towards mediation from the Banking and Insurance Sector in recent months. Answering to the concern of basic salary raised by a participant, the discussant reminded that the issue has been sorted out through a legal position adopted by the Supreme Court.[23]

Court annexed mediation also has economic value. Reports from the judiciary indicate that the monetary value of cases that were successfully resolved through mediation rather than litigation amounted to over Rwf11billlion (2022). This is the first time that the judicial officials have quantified the economic value of alternative dispute resolution mechanisms, specifically Court Annexed Mediation and mediation done by courts. Quantified cases are related to things like contracts and property. There are cases that cannot be quantified in monetary terms. For example, if you mediate a couple on the brink of divorce, you cannot quantify that.[24] Court annexed mediation, its value is beyond monetary value as it safeguards the good relationship among people, that is priceless.

Rwanda has a long and successful history of mediation through the Abunzi and Gacaca systems. “Court-Annexed Mediation comes to build on this reach history. It is posited that Court-Annexed Mediation main advantage is that the judges, mediators (among them lawyers, but also mediators coming from other disciplines) and litigants become participants therein, thereby giving to them a feeling that negotiated settlement is achieved by all the three actors in the justice delivery system.[25]

For Court-Annexed Mediation to be well practiced and bring more results, Rwanda seeks judicial cooperation with other countries, like Singapore. Last year Chief Justice, Faustin Ntezilyayo, began a three-day working visit to Singapore aimed at strengthening judicial cooperation between both countries. During the first day of the visit, Ntezilyayo met with Singapore’s Attorney-General, Lucien Wong for a courtesy call that was also attended by Deputy Attorney-Generals, Lionel Yee, and Ang Cheng Hock as well as Solicitor-General, Daphne Hong. The following day, he held bilateral talks with his Singaporean counterpart Sundaresh Menon and visited the Singapore Management University's Yong Pung How School of Law. In his address, he said the main objective of his visit was to learn from the “esteemed” Singapore Judiciary, build upon the two countries’ partnership achievements, and further strengthen the bonds of cooperation between the two judiciaries. “We recognize that knowledge knows no boundaries and in the pursuit of justice, no single system has all the answers, but by integrating the best practices from each other, we are better positioned to overcome any challenges,” he said. Rwanda and Singapore have a couple of partnerships in the judicial sector. In 2021, the supreme courts of the two countries signed a Memorandum of Understanding (MoU) on judicial cooperation aimed at, among other things, enhancing cooperation and promoting the efficient administration of justice in their respective jurisdictions. The MoU provided for exchange of experiences and discussions on matters of common interest. It also lays the foundation for cooperation between the two parties in areas such as electronic case management system and administration, court-annexed mediation and out-of-court mediation, small claims procedures, and capacity building through online and face-to-face training.[26] Rwanda is doing all possible ways to have a good environment for the mediation to be successful, this includes learning from best examples.

Despite a long journey the justice sector has to take, there are some achievements that gives us hope that even the perfection we want we will achieve it. To Rwandans who seek services from courts, when a court registrar or the judge suggests mediation, know that it is in your interest. You might have information or experience that judicial procedure is better, but I wanna let you know that court-annexed mediation is the best way to use. We save money, time and our relationships when we use mediation including court-annexed mediation.

 

 


[3] ALTERNATIVE DISPUTE RESOLUTION POLICY, September, 2022, page 5

[4]  Official Gazette n° Special of

04/08/2023 ,CONSTITUTION OF THE REPUBLIC OF RWANDA 2023

[5] Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, Article 27(2)

[6] Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, Article 28(1)

[7] Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, Article 29

[8] Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, Article 30

[9] Official Gazette nᵒ Special of 27/05/2015, PRACTICE DIRECTIONS NO 002/2015 OF 18/05/2015 BY THE CHIEF JUSTICE GOVERNING CIVIL, COMMERCIAL, LABOUR AND ADMINISTRATIVE PROCEDURE Article 11

[10] Official Gazette nᵒ Special of 27/05/2015, PRACTICE DIRECTIONS NO 002/2015 OF 18/05/2015 BY THE CHIEF JUSTICE GOVERNING CIVIL, COMMERCIAL, LABOUR AND ADMINISTRATIVE PROCEDURE Article 12

[11] Idem

[12] PRACTICE DIRECTIONS NO 002/2015 OF 18/05/2015 BY THE CHIEF JUSTICE GOVERNING CIVIL, COMMERCIAL, LABOUR AND ADMINISTRATIVE PROCEDURE, Article 10 paragraph 4&5

[18] Idem

[19] Iden

[20] Idem

[21] Idem

 

[22] Idem

[23] Idem

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