Authored By: Daisy Wagaba
Uganda Christian University
ABSTRACT
The landscape of modern litigation is undergoing a seismic shift. Courts are no longer the first redress for legal battles as the field is evolving towards ADR which is commonly known as Alternative Dispute Resolution. As court dockets swell and legal costs rise, the mantra of Alternative Dispute Resolution has transformed from a voluntary option into a procedural mandate. However, this shift brings a fundamental legal paradox to the fore.
INTRODUCTION
One may wonder what Alternative Dispute Resolution is, well it is a combination of legal mechanisms distinct from traditional litigation which involves a neutral third party aiding the concerned parties on reaching a viable solution, according to the Arbitration and Conciliation Act[1]and the Judicature (Mediation) Rules 2013.The main forms include arbitration ,mediation, conciliation and negotiation. Mediation is built on the twin pillars of voluntariness and confidentiality. When a state or court makes mediation mandatory, it arguably collapses the first pillar. Furthermore, when these mandated sessions are shrouded in absolute secrecy, it threatens the second pillar of a democratic society which is transparency. This article explores whether the push for judicial efficiency via mandatory ADR is inadvertently eroding the public’s right to know and the development of legal precedent.
METHODOLOGY
This article employs a qualitative and doctrinal research methodology, centred on the critical analysis of primary and secondary legal sources. The primary research involves an examination of statutory frameworks, such as the, Arbitration and Conciliation Act Cap 5 and the Judicature (Mediation) Rules 2013 of Uganda, Indian Commercial Courts Act and the Italian Legislative Decree 28/2010, alongside landmark judicial pronouncements like the South African Gauteng Practice Directive. Secondary research was conducted through a review of scholarly legal journals, international ADR reports, and comparative legal treatises. The approach is primarily analytical and comparative, aiming to evaluate the tension between procedural efficiency and constitutional transparency across diverse jurisdictions.
THE EVOULUTION OF MANDATORY ADR: EFFICIENCY AT WHAT COST?
The legislative intent for this is to reduce case backlog and reduce litigation costs incurred by several clients especially those with financial difficulties without denying justice. The global trend toward mandatory ADR is rarely born out of a sudden academic love for mediation; it is a pragmatic response to the litigation explosion. Modern judiciaries are increasingly acting as triage centres rather than adjudicators. By institutionalizing mandatory mediation whether through court annexed programs or legislative statutes the state aims to divert litigation backlog away from the trial bench. In this context, ADR is no longer an alternative it is rather a primary gatekeeper. This section seeks to portray how this shift changes the lawyer’s role from antagonistic in the courtroom to a problem-solver in the conference room. However, when the state forces this shift, it risks transforming a high-quality consensus building exercise into a bureaucratic hurdle because it does away with choice.
The Model Standards of Conduct for Mediators[2] emphasises self-determination as a fundamental principle for success rates of ADR notions. That is to say coercing people to negotiate with threats of cost sanctions and closing their cases indefinitely is indirect denial of justice guised under peace talks. It is also a disadvantage to a merit heavy case that actually needs judicial intervention because mandatory mediation then becomes an extra litigation tax not to mention the time one has to wait for the bureaucratic procedural processes for the case to be heard, case in point is the recent announcement from the Gauteng High Court in South Africa that issued a directive last year for mandatory mediation in civil trials before 2026 trials are handled[3].It additionally results into hollow participation as clients only show up for court procedural requirement which not only increases costs of litigation, defeating the purpose of ADR as a whole but also raises questions under this mandated voluntariness paradox.
THE SHIELD OF CONFIDENTIALITY: A THREAT TO PUBLIC NTEREST?
Large corporations use mediation confidentiality to settle product liability or harassment claims repeatedly without the public ever finding out since matters are never put on court record or publicised. This creates a chain of repeated atrocities towards innocent victims, subscribers and consumers. Additionally, in common law jurisdictions like Uganda, India and England, precedents are necessary in establishing the law as clearly stipulated in Young v Bristol Aeroplane Co. Ltd[4] which is why this selective secrecy poses a challenge to future court decisions given that the law is ever changing. This is also usually done with Non-Disclosure Agreements[5] where all parties involved in such arrangements are prohibited from disclosing and publishing any of the negotiations[6] and resolutions reached upon which all rounds up to the issue of discarding the principle of precedence. It was clearly showcased in the Me-Too Movement in America where issues arose on public access to private settlements as conflicting legal policies clashed[7],this remains one of the biggest critiques to such arrangements.
COMPARATIVE JURISPRUDENCE: EITHER THE OPT OUT OR THE HARD MANDATE
While the global trend leans toward compulsion, the degree of mandate varies significantly, creating different impacts on party autonomy and transparency. A comparison between the Italian and Indian frameworks offers a striking study in these divergent philosophies. In Italy, under Legislative Decree 28/2010, mediation is a condition of admissibility for various civil matters. However, Italy employs a unique opt-out mechanism where parties are required to attend an initial information session with a mediator. If, during this first meeting, a party decides that the dispute is not amenable to settlement, they can opt out and proceed to court without penalty. This model prioritizes exposure over coercion, it assumes that many litigants avoid ADR simply due to a lack of familiarity, but it respects the ultimate right to a trial by making the exit door easy to find.
The Indian and South African Hard–Mandate approach in contrast, the Indian Commercial Courts Act[8] and the recent Gauteng Practice Directive in South Africa represent a more rigid approach. In India, unless a party is seeking urgent interim relief, they must engage in pre-institution mediation before they are even allowed to file a suit as clearly stipulated in Patil Automation Pvt.Ltd V Rakheja Engineers Pvt Ltd[9]. Unlike the Italian model, the exit is not as seamless, as the failure to participate in good faith can lead to heavy cost sanctions or the dismissal of the claim.
ANALYTICAL CONTRAST: EFFICIENCY vs. LIBERTY
The Italian model effectively balances the transparency paradox by ensuring that parties aren’t coerced in such arrangements against their will because it treats mediation as an invitation. The Indian and South African models, however, prioritize judicial economy with the idea that the court’s resources are so scarce that the state is justified in forcing parties to exhaust every private option first. From a transparency standpoint, the Hard-Mandate approach is more dangerous. When the state forces nearly all commercial disputes into a private room as seen in the Indian 12A mandate[10], it creates a vast jurisprudential vacuum if several of contract disputes are settled before they reach a judge, the public law of contracts ceases to evolve, leaving the business community without clear, public guidelines on how modern statutes are being interpreted.
RECONCILING THE CONFLICT: TOWARD A TRANSPARENT ADR
To reconcile the inherent tension between mandatory ADR and the public’s right to transparent justice, a multifaceted reform approach is required. The following recommendations aim to preserve the efficiency of mediation without sacrificing the accountability of the judicial system and its governing principles Establishing a public interest override for confidentiality. The most pressing concern with mandatory mediation is the potential for it to act as a black hole for corporate accountability. Legislatures should introduce a Public Interest Exception in ADR statutes for this will mandate that if a dispute involves matters of significant public concern such as environmental hazards, systemic consumer fraud, or gross violations of human rights absolute confidentiality must be waived. By allowing redacted summaries of settlements or findings of fact to be accessible to regulatory bodies, the law ensures that private resolutions do not impede the public’s right to safety and information.
Transitioning to the Initial Session Mandate to uphold the principle of party autonomy, jurisdictions should move away from Hard-Mandates that force parties through the entire mediation process. Instead, a First-Session Mandate model similar to the Italian framework should be adopted. Under this system, parties are only required to attend an initial informative meeting to understand the benefits of mediation. If a party determines that the dispute is unsuitable for settlement, they should be permitted to opt out without facing judicial sanctions. This considerate compulsion balances the judiciary’s need for efficiency with the litigant’s constitutional right to a public trial thus creating an equilibrium.
Judicial Oversight of Non-Disclosure Agreements (NDAs). The judiciary must act more vigilant regarding the outcomes of court-annexed mediation. Courts should discourage or invalidate gag clause in settlements that involve repeat-offender entities. By requiring that the legal principles or terms of settlement excluding financial figures be reported in a centralized, anonymized database, the legal community can maintain principles. This prevents the privatization of precedent and ensures that the law continues to evolve through collective knowledge rather than being stymied by isolated, secret agreements.
Specialized mediator training for public accountability. Finally, there is a need for specialized training for mediators involved in mandatory programs. Mediators should be trained not only in negotiation tactics but also in identifying when a dispute has broader societal implications. By empowering mediators to report systemic issues to the court with proper ethical safeguards, the ADR process can transform from a mere clearinghouse for dockets into a proactive tool for systemic justice.
CONCLUSION
Mandatory mediation is a necessary tool for a modern judiciary, but it must not become a black hole where corporate accountability goes to die. For ADR to remain a legitimate part of the legal system, it must balance the efficiency of the private room with the sunlight of the public court.
The institutionalization of mandatory Alternative Dispute Resolution (ADR) marks one of the most significant procedural shifts in modern legal history. As this article has explored, the transition from a purely voluntary alternative to a court-mandated prerequisite is a pragmatic response to the global crisis of judicial delay. From the multi door courthouses of Nigeria to the strict pre-litigation mandates in India and Italy, the drive for efficiency is undeniable. However, as the legal landscape shifts from the public courtroom to the private conference room, the transparency paradox becomes an unavoidable challenge. The privatization of justice, while easing the burden on state resources, risks eroding the public nature of law and the consistent development of judicial precedent.
The central argument of this research is that mandatory ADR must not be allowed to become a black hole for legal accountability. If the most pressing commercial and social disputes of the century are resolved in total secrecy, the law loses its ability to serve as a public guide for future behaviour. Justice, in its truest sense, requires more than just the resolution of a conflict between two private parties; it requires a public declaration of rights and values. To prevent the privatisation of precedence the legal community must embrace hybrid models that protect the confidentiality necessary for negotiation while ensuring that outcomes of public significance remain visible to the collective eye.
Ultimately, the goal of the legal system should not be the mere clearance of dockets, but the delivery of quality justice. Mandatory mediation is a powerful tool, but it must be tempered by public interest exceptions and judicial oversight. As we look toward the future of global jurisprudence, the success of ADR will not be measured by how many cases are diverted from the courtroom, but by whether the resolutions reached behind closed doors can still withstand the light of public scrutiny. The door to the courtroom must remain ajar, ensuring that efficiency never comes at the cost of the public’s right to see justice done.
BIBLIOGRAPHY
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Karmaza OO, Fedorenko TV and Pozov DA, ‘CIVIL-LEGAL AGREEMENTS IN MEDIATION: PROBLEMS OF LAW QUALITY’ [2023] Juridical scientific and electronic journal 151 <http://lsej.org.ua/2_2023/33.pdf> accessed 11 February 2026
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Young v Bristol Aeroplane Co Ltd[1944] 2 ALL ER 293
Section 12A of the Indian Commercial Court Act 2015
Patil Automation Pvt.Ltd V Rakheja Engineers Pvt Ltd (2022) 10 SCC 1
[1] Cap 5
[2] Rainey D, ‘Model Standards of Conduct for Mediators: [Annotated for Online Dispute Resolution Practice in 2016]’ (2016) 3 International Journal of Online Dispute Resolution 30 <https://www.boomportaal.nl/doi/10.5553/IJODR/235250022016003001005> accessed 11 February 2026
[3] Brondani v Brondani (2021/52977) [2025] ZAGPJHC 1157,
[4] [1944] 2 ALL ER 293
[5] Bartlet M, Mediation and Other Forms of Alternative Dispute Resolution (Routledge 2025)
[6] Karmaza OO, Fedorenko TV and Pozov DA, ‘CIVIL-LEGAL AGREEMENTS IN MEDIATION: PROBLEMS OF LAW QUALITY’ [2023] Juridical scientific and electronic journal 151 <http://lsej.org.ua/2_2023/33.pdf> accessed 11 February 2026
[7] Menkel‐Meadow C, ‘Public Access to Private Settlements: Conflicting Legal Policies’ (1993) 11 Alternatives to the High Cost of Litigation 85 <https://onlinelibrary.wiley.com/doi/10.1002/alt.3810110608> accessed 11 February 2026
[8] Section 12A
[9] (2022) 10 SCC 1
[10] Indian Commercial Courts Act ,2015
