Where there are human beings, conflicts are bound to arise, but does this mean that all disputes should be taken to Court? The court system in Kenya is too bulky, and cases take a long while before being heard due to the backlog. These delays may lead to further injustices to the victims or the afflicted. That’s why the Judiciary is encouraging alternative dispute resolution mechanisms to ensure that everyone’s right to access justice is upheld.
ADR stands for Alternative Dispute Resolution. It is a general term that refers to a variety of methods used to resolve disputes outside of traditional court litigation. ADR methods include negotiation, mediation, arbitration, collaborative law, and other techniques that allow parties to resolve their disputes in a less formal and more flexible manner than traditional court proceedings.
In Kenya the three main ADR mechanisms are Negotiation, Arbitration and Mediation. These methods are often less costly and less time-consuming than going to court and can be used to resolve a wide range of disputes, including business disputes, employment disputes, personal injury claims, family law issues, and many others.
ADR is generally considered to be a more peaceful and collaborative way of resolving disputes, as it allows the parties involved to work together to find a mutually acceptable solution. It can also help to preserve relationships and reputations, which can be damaged through adversarial court proceedings. ADR has become an increasingly popular alternative to litigation in recent years, and many courts and legal systems now encourage or require parties to consider ADR options before going to trial.
Forms of Alternative dispute resolution
- Negotiation
- Arbitration
- Mediation.
1. Negotiation
Negotiation is a form of alternative dispute resolution (ADR) where parties involved in a dispute try to reach a mutually acceptable resolution through discussion and compromise. In negotiation, the parties attempt to find a solution that satisfies both of their interests without involving a third party to make a decision or impose a judgment.
Negotiation as an ADR method can be used in a variety of situations, such as business disputes, employment disputes, family law issues, personal injury claims, and many others. It can be conducted either informally or through formal processes such as mediation or arbitration.
In negotiation, the parties have control over the outcome and the process, which makes it a flexible and efficient method of resolving disputes. It can save time and money by avoiding the costs associated with litigation or arbitration. Moreover, negotiation allows parties to preserve relationships and reputations, which can be damaged through adversarial processes.
However, negotiation requires the parties to be willing to compromise and communicate effectively. It is not always successful, especially if one or both parties refuse to budge on their positions. In some cases, parties may require the assistance of a mediator or arbitrator to help facilitate the negotiation process and help them reach a mutually acceptable resolution.
2. Arbitration
Arbitration is a form of alternative dispute resolution (ADR) where a dispute between parties is resolved by an arbitrator, or a panel of arbitrators, who act as private judges. The parties agree to submit their dispute to an arbitrator or a panel of arbitrators, who then hear evidence and arguments from both sides and make a binding decision.
The decision made by an arbitrator is generally final and binding, and it can be enforced by a court if necessary. The arbitration process can be faster and less expensive than traditional litigation, and it is often preferred by parties who want a more private and confidential process.
In Kenya, the governing law for arbitration is the Arbitration Act (Cap 49) of 1995, which provides the legal framework for arbitration proceedings in Kenya. The Act is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, and it applies to both domestic and international arbitration proceedings.
The Act sets out the rules and procedures for initiating and conducting arbitration proceedings in Kenya, including the appointment of arbitrators, the conduct of the hearing, and the enforcement of arbitration awards. It also provides for the recognition and enforcement of foreign arbitration awards in Kenya under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Advantages and Disadvantages of Arbitration
Arbitration, like any form of dispute resolution, has its advantages and disadvantages. Here are some of the advantages and disadvantages of arbitration:
Advantages of arbitration:
Flexibility: Parties can agree on the arbitration process that best suits their needs, including the selection of the arbitrator, the location and timing of the hearing, and the procedures to be followed.
- Speed: Arbitration can be a faster process than litigation, as the parties can avoid court delays and scheduling conflicts.
- Privacy: Arbitration proceedings are generally private and confidential, which can help parties maintain their privacy and reputation.
- Expertise: Parties can choose an arbitrator with expertise in the relevant area of law or industry, which can help ensure a more informed decision.
- Finality: Arbitration decisions are generally final and binding, which provides certainty and finality to the parties involved.
Disadvantages of arbitration:
- Limited legal recourse: Arbitration decisions are generally final and binding, which means that parties have limited legal recourse to challenge an unfavorable decision.
- Cost: Arbitration can be more expensive than other forms of ADR, as parties often have to pay for the arbitrator’s fees and expenses, as well as their own legal fees.
- Limited discovery: Parties have limited discovery rights in arbitration, which means that they may not be able to obtain all the evidence they need to support their case.
- Lack of transparency: Arbitration proceedings are generally private and confidential, which can make it difficult for the public to understand the reasoning behind the arbitrator’s decision.
- Limited appeal: The grounds for appealing an arbitration decision are limited, which means that parties may not be able to challenge an unfavorable decision on legal or factual grounds.
It is important to note that the advantages and disadvantages of arbitration will vary depending on the specific circumstances of each case. Parties should carefully consider their options and seek legal advice before deciding whether arbitration is the best form of dispute resolution for their situation.
3. Mediation
Mediation is a form of alternative dispute resolution (ADR) that is recognized and encouraged under the Kenyan legal system. It is a voluntary process where a neutral third party, known as a mediator, helps parties in a dispute to communicate, negotiate and reach a mutually acceptable resolution to their dispute.
The mediator does not make a decision or impose a judgment on the parties but instead facilitates a dialogue between them, helps them to clarify their interests, and guides them towards a mutually acceptable solution. Mediation is a flexible and informal process that allows parties to control the outcome and maintain their relationship.
Under the Kenyan legal system, mediation is governed by the Mediation Act (No. 3 of 2012), which provides a framework for the use of mediation as an ADR mechanism in Kenya. The Act recognizes the confidentiality of mediation proceedings and encourages parties to participate in good faith.
The Mediation Act also provides for the establishment of a Mediation Accreditation Committee (MAC) to accredit and regulate mediators in Kenya. The MAC is responsible for maintaining a register of accredited mediators, setting standards of accreditation, and monitoring the conduct of accredited mediators.
Mediation can be used to resolve a wide range of disputes in Kenya, including family disputes, land disputes, commercial disputes, and labor disputes, among others. The Kenyan courts also encourage the use of mediation and may refer cases to mediation before proceeding with a formal trial.
Legal Framework for Mediation in Kenya
Article 159(2)(c) of the Constitution, 2010 has provided the framework for mediation by mandating the judiciary to promote Alternative Dispute Resolution in the administration of justice.
Section 59 (B)(1)(a)(b) and (c) of the Civil Procedure Act
Mediation Bill 2020
The Civil Procedure Act, provides that cases already filed in court can be referred to mediation.
Court Annexed Mediation Pilot Project Rules 2015.
The Employment Act 2007, which provides for conciliation and mediation of employer-employee disputes.
The Marriage Act, 2014 recognizes mediation as a process for resolving matrimonial disputes.
The Nairobi Centre for International Arbitration Act 2013, handles mostly commercial domestic and International arbitration and mediation.
The Nairobi Centre for International Arbitration (Mediation) Rules 2015, make provisions for mediation and mediators accredited by the centre.
The National Cohesion and Integration Act, 2008 provides for mediation, conciliation and mediation in securing peace.
The National Police Service Act No. 11A of 2011, recognizes voluntary participation of the local community in the maintenance of peace.
The Sports Act 2013, provides for mediation of disputes arising from the Act.
The Kenya 2016-2018 National Action Plan for the Implementation of UN Security Council Resolution 1325.
Sessional Paper No. 5 of 2014 on National Policy for Peace Building and Conflict
Management which provides a framework for the promotion for sustainable peace by local communities, state and non-state actors.
International Framework for Mediation
1. The United Nations Charter
UN Resolution 37/10, the Manila Declaration on the Peaceful Settlement of Disputes, 1982.
UN Resolution 65/283 of 2011 on Strengthening the Role of Mediation in THE Peaceful Settlement of Disputes, Conflict Prevention and Resolution.
The UN Resolutions 1325, 1820 and 1888 on Women, Peace and Security.
The UN Resolution 2250 on Youth, Peace and Security.
The African Union Protocol Relating to the Establishment of the Peace and Security Council of the African Union. 2002.
IGAD Protocol on the Establishment of a Conflict Early Warning and Response Mechanism. 2002.
East African Community Protocol on Peace & Security, 2013.
East African Community Protocol on Conflict Prevention, Management and Resolutions Mechanisms. 2013.
Types of Mediation
- Workplace Mediation
- Community Mediation
- Victim Offender Mediation
- Civil Mediation/ Commercial Mediation/ Court Mandated Mediation
- Family Mediation
The Mediation Process
The mediation process in Kenya involves several stages that are designed to help parties in a dispute to communicate, negotiate and reach a mutually acceptable resolution. Here is a general overview of the mediation process in Kenya:
- Initiation: The mediation process usually begins when one party or their lawyer sends a written request for mediation to the other party. The request should contain a brief description of the dispute and a proposal to use mediation to resolve it.
- Mediator selection: If both parties agree to use mediation, they will need to select a mediator. The mediator can be chosen from the list of accredited mediators maintained by the Mediation Accreditation Committee (MAC) or agreed upon by the parties.
- Preliminary meeting: The mediator will schedule a preliminary meeting with the parties to explain the mediation process, discuss the ground rules, and sign a mediation agreement that sets out the terms and conditions of the mediation.
- Mediation sessions: The mediator will schedule one or more mediation sessions with the parties, where they will discuss the issues in dispute and explore possible solutions. The mediator may meet with the parties together or separately, and the sessions can be conducted in person or virtually.
- Settlement agreement: If the parties reach a mutually acceptable resolution, the mediator will help them to draft a settlement agreement that sets out the terms of the settlement. The settlement agreement will be signed by the parties and can be enforced as a binding contract.
- Termination: If the parties are unable to reach a settlement, the mediation process will be terminated, and the parties can pursue other options to resolve their dispute, such as arbitration or litigation.
The mediation process in Kenya is flexible, and the parties can modify the process to suit their needs. The mediator’s role is to facilitate the process and help the parties to reach a mutually acceptable resolution.
Finality of Mediation.
A mediation agreement reached between parties in a mediation process is generally binding and enforceable as a contract. However, a mediation agreement may be challenged or set aside under certain circumstances.
If one party believes that the mediation agreement is unfair or was reached under duress or coercion, they may apply to the court to set aside the agreement. The court may set aside the agreement if it finds that there was a fundamental mistake, fraud, undue influence, or coercion involved in the mediation process. The court may also set aside the agreement if it is contrary to public policy or the law.
It is important to note that the grounds for challenging a mediation agreement are limited, and the court will generally only set aside an agreement in exceptional circumstances. Parties are encouraged to seek legal advice before signing a mediation agreement to ensure that they understand its terms and implications.
In terms of appeal, a mediation agreement cannot be appealed in the same way as a court judgment. However, if a party believes that the mediator acted improperly or exceeded their authority during the mediation process, they may challenge the mediator’s conduct by filing a complaint with the Mediation Accreditation Committee (MAC). The MAC has the power to investigate complaints and take disciplinary action against accredited mediators who breach the Code of Conduct for Mediators.
Role of the Mediator
The mediator plays a crucial role in the mediation process in Kenya. Here are some of the key roles and responsibilities of a mediator in a mediation:
- Facilitating communication: The mediator’s primary role is to facilitate communication between the parties in dispute. The mediator helps the parties to communicate effectively, listen actively, and express their interests and concerns.
- Managing the process: The mediator manages the mediation process and ensures that it proceeds in a fair, impartial, and orderly manner. The mediator helps the parties to set the agenda, establish ground rules, and define the scope of the mediation.
- Identifying issues: The mediator helps the parties to identify the key issues in dispute and explore the underlying interests and concerns. The mediator encourages the parties to look beyond their positions and consider alternative solutions.
- Generating options: The mediator helps the parties to generate options for resolving the dispute and encourages them to consider creative solutions that meet their underlying interests and concerns.
- Negotiating an agreement: The mediator helps the parties to negotiate a mutually acceptable resolution that meets their interests and needs. The mediator assists the parties in drafting a settlement agreement that sets out the terms of the resolution.
- Maintaining neutrality: The mediator is neutral and impartial throughout the mediation process. The mediator does not take sides or advocate for a particular outcome.
- Ensuring confidentiality: The mediator ensures that the mediation process remains confidential, and the parties can speak freely without fear of their statements being used against them in court.
Overall, the mediator’s role is to help the parties to communicate effectively, negotiate a mutually acceptable resolution, and reach a settlement that meets their needs and interests. The mediator’s role is not to impose a solution or make a decision on behalf of the parties.
The Mediation Agreement
A mediation agreement in Kenya is a written document that sets out the terms of a resolution reached between the parties in a mediation process. While the specific components of a mediation agreement may vary depending on the nature of the dispute and the terms of the settlement, here are some key components that are typically included:
- Identification of the parties: The mediation agreement should identify the parties to the agreement and the nature of the dispute that was the subject of the mediation.
- Description of the settlement: The mediation agreement should describe the terms of the settlement reached by the parties, including any agreed-upon actions, payments, or other obligations.
- Release of claims: The mediation agreement should include a provision releasing all claims and causes of action related to the dispute that was the subject of the mediation. This provision ensures that the parties cannot continue to litigate the dispute after the mediation has concluded.
- Confidentiality provisions: The mediation agreement should include provisions that preserve the confidentiality of the mediation process and the terms of the settlement.
- Dispute resolution provisions: The mediation agreement may include provisions for resolving any disputes that may arise under the agreement, such as the use of further mediation, arbitration, or litigation.
- Signature and execution: The mediation agreement should be signed and executed by all parties to the agreement, and any required witnesses or attorneys.
It is important to note that a mediation agreement is a legally binding contract, and the terms of the agreement will be enforced in accordance with Kenyan law. Parties are advised to seek legal advice before signing a mediation agreement to ensure that they understand the terms and implications of the agreement.
Mediation in Kenya
Dispute Resolution Centre, established in 1998
Mediation Accreditation Committee (MAC) accredits mediators who have attained a 40-hour mediation training from various organizations
Within the Government – Political Parties Dispute Resolution Board and the National Cohesion and Integration Commission
Mediation Costs
The cost of mediation in Kenya can vary depending on several factors, such as the complexity of the dispute, the location of the mediation, and the fees charged by the mediator. In Kenya, the fees charged by mediators are not regulated by law, and the parties are generally free to negotiate the fees with the mediator. However, there are some guidelines and best practices that parties can follow to minimize the costs of mediation:
- Choose a mediator with reasonable fees: Parties can research and compare the fees charged by different mediators and choose one who offers reasonable rates.
- Agree on the cost-sharing arrangements: The parties can agree on the cost-sharing arrangements before the mediation begins. They may agree to split the costs evenly or allocate the costs based on some other criteria.
- Use a mediation service provider: Some mediation service providers in Kenya offer their services at a reduced cost, and the parties can take advantage of these services to save costs.
- Prepare for the mediation: Parties can prepare thoroughly for the mediation to minimize the time and costs involved. This includes gathering and organizing all relevant documents and information and discussing settlement options before the mediation.
- Avoid unnecessary delays: Parties should aim to complete the mediation process as quickly as possible to avoid incurring unnecessary costs. Delays can lead to additional fees, such as venue rental fees or mediator fees.
Overall, the cost of mediation in Kenya can be significantly lower than the cost of litigation. Mediation is generally faster, less formal, and less expensive than litigation, making it an attractive option for parties who want to resolve their disputes efficiently and cost-effectively.
Why one should use Mediation instead of Litigation.
Mediation is often considered a better alternative to litigation for several reasons:
- Cost: Mediation is generally less expensive than litigation. Mediation can save parties a significant amount of money by avoiding the high costs associated with court fees, attorney fees, and expert witness fees.
- Time: Mediation can be completed much more quickly than litigation. In litigation, court proceedings can drag on for years, while mediation can be completed in a matter of weeks or months.
- Flexibility: Mediation is more flexible than litigation. The parties have more control over the outcome of the mediation, and they can create a solution that is tailored to their specific needs and interests.
- Confidentiality: Mediation is confidential, and the parties can discuss sensitive issues without fear of the information being used against them in court. This can encourage the parties to be more open and honest in their discussions, leading to a more effective resolution.
- Preserves relationships: Mediation can help to preserve relationships between the parties, as it promotes open communication and cooperation. In contrast, litigation can often lead to hostility and damaged relationships.
- Outcome: Mediation can result in a win-win outcome, where both parties feel that their needs and interests have been addressed. In litigation, there is usually a winner and a loser.
Overall, mediation is a more collaborative and less adversarial process than litigation, which can make it a better option for parties who want to preserve their relationships, save money and time, and have more control over the outcome of their dispute.
(Example Mbuyi Koinange- 40 year Succession Case)
Disadvantages of Mediation.
While mediation is generally considered to be a highly effective method of dispute resolution, there are some potential disadvantages to consider:
- No guarantee of settlement: There is no guarantee that a settlement will be reached in mediation. If the parties are unable to reach an agreement, they may need to resort to litigation or another form of dispute resolution.
- Unequal bargaining power: Mediation may not be suitable for cases where there is a significant power imbalance between the parties. If one party has significantly more power or resources than the other, they may be able to negotiate a more favorable settlement, which could be perceived as unfair by the other party.
- Lack of formal legal process: Mediation is not a formal legal process, and there may be concerns about the enforceability of any agreement that is reached. If one party later refuses to comply with the terms of the agreement, the other party may need to resort to legal action to enforce it.
- Limited discovery: Mediation does not involve the same level of discovery as litigation, which means that parties may not have access to all of the relevant information they need to make informed decisions.
- Lack of legal precedent: Mediation agreements do not set legal precedent, which means that future disputes may not be resolved in the same way as the current dispute. In litigation, court decisions can set legal precedent that can be used to guide future decisions.
- Unresolved emotional issues: Mediation may not be effective if there are underlying emotional issues that are not addressed. If parties are not able to put aside their emotions and focus on the issues at hand, mediation may not be successful.
Overall, while there are some potential disadvantages to mediation, it is still often a highly effective and efficient method of resolving disputes, particularly in situations where the parties are willing to work together to find a mutually acceptable solution.
Challenges Facing Mediation in Kenya.
While mediation is a recognized form of alternative dispute resolution in Kenya, there are still several challenges facing its implementation:
- Lack of awareness: Many people in Kenya are not familiar with the concept of mediation and do not understand how it works. This can make it difficult to encourage people to use it as a form of dispute resolution.
- Cultural barriers: Cultural barriers can also make it difficult to promote the use of mediation in Kenya. Some people may prefer to resolve disputes using traditional or informal methods that are based on their cultural beliefs and practices.
- Limited resources: There is a lack of resources for the promotion and implementation of mediation in Kenya. This includes a shortage of trained mediators, limited access to mediation facilities, and a lack of funding for mediation services.
- Legal framework: Although there are laws in Kenya that support mediation, there is still a lack of a clear legal framework for the practice. This can create confusion and uncertainty around the use of mediation in certain situations.
- Resistance to change: There may be resistance to change from parties who are used to traditional forms of dispute resolution, such as litigation. Some parties may be reluctant to engage in mediation because they are not familiar with the process or are concerned about the outcome.
Overall, while mediation has the potential to be a highly effective form of dispute resolution in Kenya, there are still several challenges that need to be addressed to ensure that it is widely adopted and effectively implemented. This includes raising awareness about the benefits of mediation, increasing the availability of trained mediators and mediation facilities, and developing a clear legal framework for the practice.