UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION

UNIT CODE : LLBE 313

COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

TOPIC 1: THE CONCEPT OF ALTERNATIVE DISPUTE RESOLUTION

1.1 Objectives

This topic discusses the meaning of alternative dispute resolution; limits of judicial process and
reasons to find alternatives; objects and goals of ADR; scope of ADR.

1.2 Meaning of Alternative Dispute Resolution (ADR)

Disputes are as old as the human race. They are a common feature of social and legal relations
between individuals, corporate and state parties both at domestic and international level. Their
continued escalation calls for the establishment of elaborate systems of conflict management and
dispute resolution or determination. Such a system would accommodate the increasing need for
expedition and the desire to resolve disputes at minimal cost, particularly in commercial
transactions, in the interest of all parties.

To achieve these objectives, there are innovative international protocols, treaties and domestic
legislation designed to offer invaluable alternatives to conventional judicial systems, whose
adversarial scales of justice often do not tip to the advantage of the litigants, taking account of
the expense in time and money weighed against the limited benefits.

Basic treaty and legislative instruments, such as the 1923 Geneva Protocol on Arbitration
Clauses, the 1985 United Nations Commission on International Trade Law, the 1958 New York
Convention on the Enforcement of Foreign Awards, domestic legislation, such as the Arbitration
Act, Revised 2010 (1995), and institutional rules, only to mention a few, have spurred the
establishment of various institutions and promulgation of procedural rules to facilitate
enforcement of rights and awards in commercial and other matters capable of settlement by
arbitration without undue delay and expense.

Alternative dispute resolution (ADR) is the mechanism of resolving disputes in any other form
other than through the court process. It can also be defined as a process in which a neutral third
party helps parties who are embroiled in a dispute come to an agreement. To some writers

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

however the term “alternative dispute resolution” is a misnomer as it may be understood to imply
that these mechanisms are second-best to litigation which is not true. Article 33 of the Charter of
the United Nations outlines these conflict management mechanisms in no unclear terms and is
the legal basis for the application of alternative dispute resolution mechanisms in disputes
between parties be they States or individuals. It outlines the various conflict management
mechanisms that parties to a conflict or dispute may resort to. It provides that the parties to any
dispute shall, first of all seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.

ADR processes include mediation, conciliation, negotiation, arbitration, convening, adjudication

and traditional dispute resolution mechanisms. These different ADR mechanisms and processes
are highlighted below:
 Negotiation
While the two most common mechanisms of ADR are arbitration and mediation, negotiation is
almost always attempted first to resolve a dispute. Negotiation allows the parties to meet in order
to settle a dispute. The main advantage of this form of dispute settlement is that it allows the
parties themselves to control the process and the solution. Negotiation is much less formal than
other types of ADRs and allows for a lot of flexibility.

Negotiation manages conflict in a positive and productive manner in the interest and to the
benefit of all parties. Those who stand the test of conflicts reap the benefits of strengthened
relations, self-awareness and enhanced personal and psychological development. On the other
hand, the adversarial positions often taken in judicial and arbitral proceedings breed strife and
hostility with little or no tangible benefits. Backed by goodwill, the commonality of purpose
gives the parties the impetus to hold onto every opportunity for settlement on terms and in a
process which they own, and with which they identify.

The process of negotiation presents parties with an opportunity to manage their conflict and
merge their psychological disparity in relation to their rights, interests and ideas. Their
interactive interdependence facilitates simultaneous achievement of their perceived divergence

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

of interests, beliefs and aspirations. What may have been conceived as incompatible goals are
transformed into common interests. The ease or difficulty with which this may be achieved
depends on, among other factors, the level of conflict in issue.

Negotiation thrives in a flexible medium of good will outside fixed or established rules of
procedure, or other rigid systems for resolving the conflict. Where such systems are engaged and
pose the risk of impeding progress in joint resolution, the parties are free to opt out of them and
adopt a more flexible procedure for the achievement of what emerges as their own invention.
Negotiation is so informal that few recognize its dynamic character and rewarding effect. Indeed,
the desired effect of a negotiated settlement is worth more than the unpredictable award of an
arbitrator or judge in the courtroom in many ways. It ensures the safeguarding of relations
between the parties and guarantees continuity in their social or business engagement.
 Mediation
In mediation, a neutral third party tries to help disputants come to a consensus on their own.
Rather than imposing a solution, a professional mediator seeks to assist the conflicting sides in
exploring the interests underlying their positions. Working with parties together and sometimes
separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and
non-binding. Mediators can help disputants break an impasse in the following ways:
1. Finding additional information that parties were unwilling to share with each other;
2. Overcoming parties’ resistance to communicating and reaching an agreement by
presenting offers to both sides;
3. Contributing impartial, specialized expertise; and
4. Brainstorming options to find a resolution that satisfies both parties.
Mediators can be largely facilitative, engaging primarily in shuttle diplomacy and keeping their
own views hidden. Other mediators are more evaluative, offering their own knowledge and
opinions to guide parties toward agreement. In most occasions, mediators are individuals trained
in negotiations, who bring opposing parties together and attempt to work out a settlement or
agreement that both parties accept or reject. Mediation is not binding.
 Arbitration
Arbitration is one of the most emblematic and growing forms of ADR. Arbitration is more
formal than mediation and has a lot of similarities with traditional court proceedings, involving

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

limited discovery and simplified rules of evidence. For example, hearsay is usually admissible in
arbitration.

In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.
The arbitrator listens as each side argues its case and presents relevant evidence, then renders a
binding decision. Disputants can negotiate virtually any aspect of the arbitration guidelines,
including whether lawyers will be present and which standards of evidence to use. Arbitrators
hand down decisions that are usually confidential, that is binding, and that cannot be appealed.
Arbitration tends to be more expensive than mediation but less expensive than litigation.
Disputants can give the arbitrator the authority to determine who will win the case and what the
award, if any, will be.
 Conciliation
Conciliation is a process in which a third party, called a conciliator, restores damaged
relationships between disputing parties by bringing them together, clarifying perceptions, and
pointing out misperceptions. The difference between mediation and conciliation is that the
conciliator, unlike the mediator who is supposed to be neutral, may or may not be totally neutral
to the interests of the parties. Successful conciliation reduces tension, opens channels of
communication and facilitates continued negotiations. Frequently, conciliation is used to restore
the parties to a pre-dispute status quo, after which other ADR techniques may be applied.
Conciliation is also used when parties are unwilling, unable, or unprepared to come to the
bargaining table.
 Convening
Convening serves primarily to identify the issues and individuals with an interest in a specific
controversy. The neutral, called a convenor, is tasked with bringing the parties together to
negotiate an acceptable solution. This technique is helpful where the identity of interested parties
and the nature of issues are uncertain. Once the parties are identified and have had an
opportunity to meet, other ADR techniques may be used to resolve the issues.
 Adjudication
Adjudication is defined under the Chartered Institute of Arbitrators (K) Adjudication Rules as
the dispute settlement mechanism where an impartial, third-party neutral person known as an
adjudicator makes a fair, rapid and inexpensive decision on a given dispute arising under a

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

construction contract. It is an informal process, operating under very tight time scales (the
adjudicator is supposed to reach a decision within 28 days or the period stated in the contract),
flexible and inexpensive process; which allows the power imbalance in relationships to be dealt
with so that weaker sub-contractors have a clear route to deal with more powerful contractors.
The decision of the adjudicator is binding unless the matter is referred to arbitration or litigation.
Adjudication is thus effective in simple construction disputes that need to be settled within some
very strict time schedules. The demerits of adjudication are that it is not suitable to non-
construction disputes; the choice of the arbitrator is also crucial as his decision is binding and
that it does not enhance relationships between the parties.
 Facilitation
Facilitation improves the flow of information within a group or among disputing parties. The
neutral, called a facilitator, provides procedural direction to enable the group to effectively move
through negotiation towards agreement. The facilitator's focus is on the procedural assistance to
conflict resolution, compared to a mediator who is more likely to be involved with substantive
issues. Consequently, it is common for a mediator to become a facilitator, but not the reverse.
 Mediation-Arbitration (Med-Arb)
Mediation Arbitration (Med-Arb) is a combination of mediation and arbitration. Initially, a
neutral third party mediates a dispute until the parties reach an impasse. After the impasse, a
neutral third party issues a binding or non-binding arbitration decision on the cause of the
impasse or any unresolved issues. The disputing parties agree in advance whether the same or a
different neutral third party conducts both the mediation and arbitration processes. Use of the
same person for both processes creates a problem since when the mediator turned arbitrator must
ignore previously acquired confidential information.
 Mini-trial
Mini-trial is a dispute resolution technique which provides an opportunity for a summary
presentation of evidence by lawyer or other fully informed representative for each side to
decision makers, usually a senior executive from each side. After receiving the evidence, the
decision makers privately discuss the case. “Mini-trial” is not a small trial; it is a sophisticated
and structured settlement technique used to narrow the gap between the parties’ perceptions of
the dispute and which “facts” are actually in dispute. This hybrid technique can occur with or
without a neutral's assistance, but neutrals frequently facilitate the processes for presentation of

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

evidence and discussion among the decision makers, and serve as a mediator to reach a
settlement. Mini-trials can be more expensive than most other ADR techniques because the cost
of presenting even summary evidence to senior executives is high. Therefore, this process is
generally reserved for significant cases involving potential expenditure of substantial time and
resources in litigation.
 Traditional Dispute Resolution Mechanisms
These are mechanisms that have always existed amongst communities for the management of
conflicts. They include what is known today as mediation, negotiation, Med-Arb and other
norms.

In exercising judicial authority, the courts and tribunals in Kenya are mandated under the
Constitution to be guided by, among others, the principle that alternative forms of dispute
resolution, including reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms be promoted, subject to the provisions of Article 159(3). Clause (3) prescribes
restrictions on the use of traditional dispute resolution mechanisms and provides that they shall
not be used in any way that (a) contravenes the Bill of Rights; (b) is repugnant to justice and
morality or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent
with the Constitution or any written law.

In the spirit of Article 159(2) of the Constitution, courts and tribunals may adopt and implement
(of their own motion or at the request of the parties) any appropriate means of dispute resolution
(including mediation) for the attainment of the overriding objective envisaged under sections 1A
and 1B of the Civil Procedure Act, 2010. Accordingly, courts are empowered by rule 20(2) to
adopt alternative dispute resolution strategies and make such orders or issue such directions as
may be necessary to facilitate such means of dispute resolution. The overriding objective
envisaged in section 1A(1) of the Civil Procedure Act is “... to facilitate the just, expeditious,
proportionate and affordable resolution of civil disputes.”

It should be borne in mind, though, that not all conflicts may be resolved or managed through
negotiation as between party and party with or without counsel. While third party intervention
may not be necessary in most cases of conflict resolution, it is common in certain types of

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

disputes, such as disagreement between business partners, labour relations, marital or patent
rights disputes, where the legal system or other process in which a mediator, arbitrator or legal
expert may be engaged. Certain statutes or organizational regulations may also prescribe
grievance systems through which disputes in specific areas may be resolved. Such third parties
may be institutionalised into rules, policies and procedures of various organizations charged with
oversight of individual or group interests.

1.3 Limits of judicial process and reasons to find alternatives

 ADR offers efficiency by providing a faster resolution compared to court proceedings,

which can be time-consuming and prone to backlogs. ADR processes are designed to be
streamlined, enabling parties to reach a resolution more expeditiously;
 ADR is cost-effective. Litigation involves significant expenses such as legal fees and
court-related expenditures, whereas ADR methods often entail lower costs, making it a
more economical option;
 ADR provides flexibility and informality. Parties have greater control over neutral
facilitators’ procedures, timing, and choice, fostering a more adaptable and customized
approach to dispute resolution;
 ADR ensures confidentiality. Processes like mediation and negotiation maintain the
privacy of discussions, allowing parties to openly address issues without public exposure;
 ADR focuses on finding mutually acceptable solutions, preserving relationships between
parties instead of exacerbating conflicts. It empowers and engages parties in decision-
making, resulting in higher satisfaction and compliance;
 ADR also overcomes legal limitations by addressing disputes beyond the purview of the
traditional legal system, such as cross-border disputes or specialized matters like
intellectual property;
 ADR is essential as it offers an efficient, cost-effective, flexible, confidential, and
relationship-preserving approach to resolving disputes.

1.4 Objectives and goals of ADR

The objectives and goals of ADR may be summarized as follows:

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UNIT TITLE : ALTERNATIVE DIISPUTE RESOLUTION
UNIT CODE : LLBE 313
COURSE INSTRUCTOR : PROF. MORRIS KIWINDA MBONDENYI, MBS

1. To reduce court congestion and to prevent unnecessary cost and delay;

2. To grow community involvement in the dispute resolution process;
3. To enable access to justice;
4. To offer more effective dispute resolution;
5. Minimizing the number and frequency of disputes;
6. Saving costs on handling disputes;
7. Resolving disputes faster;
8. Providing an outlet for disputants to discuss frustrations;
9. Achieving results that are stable and enforceable;
10. Maintaining good relationships with stakeholders;
11. Avoiding protracted disputes by providing a framework to deal with future disputes as
they arise;
12. Developing processes that are flexible enough to handle a range of dispute types in an
appropriate manner;

1.5 Scope of ADR

The scope of ADR extends to various sectors, such as commercial, consumer, family, labour,
intellectual property, and environmental disputes. The potential of ADR in reducing the burden
on courts and promoting efficient and cost-effective resolution of disputes is recognized the
world over. As a result, ADR has gained prominence in recent years, and specialized institutions
and centres have been established to facilitate the effective implementation of ADR mechanisms.

The scope of alternative dispute resolution is continually evolving, reflecting the growing
recognition of its potential to address the diverse range of disputes in a more efficient and
satisfactory manner. The increased adoption of ADR methods by the public, along with recent
developments such as the court annexed mediation processes have further enhanced the reach
and effectiveness of ADR in the country.