What is Alternative Dispute Resolution?
Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. When you have a legal disagreement with another party/parties, going to court is not a mandatory next step.
Alternative Dispute Resolution is relevant as it is a cheaper and faster alternative to the court process. This is because the court process can take long periods of time which can result in an accumulation of legal fees. In addition to this, ADR is informal and flexible to your needs. Unlike the publicity of court proceedings, these methods are also confidential. In Kenya, the four available Alternative Dispute Resolution methods are arbitration, mediation, conciliation and negotiation.
Arbitration
This is similar to the court process. When using this method, opposing parties will present their individual cases to a neutral third person/party and give the person the authority to make a decision that both parties will be bound to. The neutral party is chosen by both of the parties and is usually an expert in the area of dispute. He/she is referred to as an arbitrator. The process is as follows: one side presents their case and gives evidence (if any); afterwards, the other party presents their case and gives evidence (if any). The neutral person/party having listened to both sides makes a decision on the dispute; both disputing parties may be legally bound to the arbitrator’s decision, this means, the parties must follow through with the decision the arbitrator makes. In Kenya, arbitration services are offered by centres such as Nairobi Centre for International Arbitration. (https://ncia.or.ke/)
This Alternative Dispute Resolution method is regulated by The Arbitration Act, Cap 49 of the Laws of Kenya. An example of an arbitration clause in a contract can be seen below:
“Any dispute, controversy or claim arising out of or in connection to this contract, or breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Arbitration Act, Cap 49 of the Laws of Kenya.”
Mediation
This method mirrors arbitration in all aspects except one; the neutral party in this method does not impose a solution or give legal advice. The mediator (a neutral party) listens to both sides, points out the interests and/or needs of the parties, then helps the disputing parties to agree on a solution. Based on the above, the process is as follows; both parties present their individual cases and provide evidence (if any); the mediator identifies and points out the true interests and/or needs of the parties; the parties will then negotiate a solution with the mediator acting as a moderator who keeps the discussion on track.
A point to note is that anyone can act as a mediator, however, it is advisable to use someone who has been trained in the process. In Kenya, meditation services are offered by centres such as Nairobi Centre for International Arbitration. (https://ncia.or.ke/) This method is regulated by The Mediation Rules 2015. An example of a mediation clause in a contract is as follows:
“Where, in the event of a dispute arising out of or relating to this contract, the parties wish to seek an amicable settlement of that dispute by mediation, the mediation shall take place in accordance with the Mediation Rules 2015.”
Conciliation
In this method, the neutral party (the conciliator) can give his/her opinions and views to the disputing parties, including options for settlement. The process is as follows: both parties present their individual cases and provide evidence (if any). The conciliator will then take into consideration the cases brought by both parties and give his/her views and opinions for settlement. If the parties like one of the opinions for settlement, they will create an agreement. If the parties are unable to reach a conclusion, then the conciliator will give them tips and pointers on the next steps. This method is conciliatory meaning it encourages the parties to remain pleasant to each other and avoid hostility. This method is regulated by The Public Service Commission Guidelines for Negotiation, Conciliation and Mediation 2014.
Negotiation
It is a bargaining process between two or more parties seeking common ground and reaching an agreement to settle a matter of mutual concern or resolve a conflict. The process of negotiation is as follows: both parties present their individual cases and provide evidence (if any). The parties will then offer opinions and solutions back and forth and the possible outcomes. An agreement is reached once both parties reach the same conclusion whether positive or negative (the parties may be able to resolve the dispute or realise their interests are too far apart for negotiation efforts to work.) The goal of this process is to achieve a win-win situation where both parties leave feeling as if they have achieved what they aimed to. A third party is not included in the process. This method is regulated by The Public Service Commission Guidelines for Negotiation, Conciliation and Mediation 2014.
References:
Nairobi Centre for International Arbitration. (https://ncia.or.ke/)
The Public Service Commission Guidelines for Negotiation, Conciliation and mediation 2014. (https://www.health.go.ke/wp-content/uploads/2015/11/GUIDELINES%20FOR%20NEGOTATION%20CONCILIATION%20AND%20MEDIATION.pdf)
The Mediation Rules 2015. (mediation_rules_2016.pdf (ncia.or.ke))
The Arbitration Act, Cap 49 of the Laws of Kenya. (ArbitrationAct4of1995_2.pdf (ncia.or.ke))
DISCLAIMER:
This is a simple guide. It is not to be taken as legal advice.
If you want a law firm to provide legal advice, contact us at mailto:info@kenyanlaw.com