By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
As the Government pursues the policy of encouraging ADR to foster a more conciliatory approach to conflict management through legislation, it important to ensure that parties have a choice on whether to use or not ADR and their obligations, rights and duties when they should to participate in ADR should be clearly defined. Thus, while there are obvious limitations to the use of formal law in regulating ADR given the diverse contexts in which ADR is practiced, where legislation is opted for, the following issues should as far as possible be addressed to provide clarity to the ADR process and reduce potential challenges to the ADR outcome.
Referral of disputes to ADR
Law makers need to decide which method of ADR referral should be employed. Referral may be compulsory by a court or voluntary, where parties are at will to decide whether to submit their dispute to an ADR forum. It may also be mandatory or at the discretion of the referrer, as contemplated in the Mediation (Pilot Project) Rules, 2015. The Civil Procedure Act provides for discretionary compulsory referral as well as voluntary referral. Where there is compulsory participation, it is important that there be established professional standards for the process as well as for the practitioners, to ensure a quality process and a quality outcome. These processes also need to be described so as to effectively promote public confidence.
It is noteworthy that one of the main reasons why most of the ADR mechanisms are popular and preferred to litigation are their relative party autonomy which makes parties gain and retain control over the process and the outcome. It is therefore important for the court to ensure that there is no foreseeable factor that may interfere with this autonomy as it may defeat the main purpose of engaging in these processes. One of the constitutional requirements with regard to access to justice in Kenya is that the State should ensure that cost should not impede access to justice and, if any fee is required, the same should be reasonable. It is, therefore, important that even where persons use private means of accessing justice, the cost should be reasonable. This is especially where there was no prior agreement to engage in ADR. Regulation of ADR should also ensure that the outcome of the ADR mechanisms remains flexible, parties can settle on outcomes that satisfactorily address their needs and nothing affects parties’ ability and willingness to participate in such processes.
Obligations of parties to participate in ADR
Compulsory participation in ADR is highly opposed by those in favour of voluntary participation in ADR who argue that conciliation or mediation is essentially a consensual process that requires the co-operation and consent of the parties. On the other hand, those who argue in favour of compulsory participation in ADR respond that if the dispute is removed from the adversarial procedures of the courts and exposed to procedures designed to promote compromise, then even the most fundamental resistance to compromise can turn to co-operation and consent. The element of ‘good faith’ which is usually present in voluntary ADR is not assured in compulsory ADR, leading states and courts to give rules requiring parties to participate in ADR in good faith or ‘in a meaningful manner.’
Courts also sanction parties for violations of a good-faith-participation requirement such as for failing to attend or participate in an ADR process or engaging in a pattern of obstructive, abusive, or dilatory tactics. Sanctions include the shifting of costs and attorney’s fees, contempt, denial of trial de novo, and even dismissal of the lawsuit. Lawmakers should thus have regard to what conduct constitutes good conduct, a system of handling claims of bad faith, maintenance of the confidentiality of the process even as such case of bad faith is before the court and the effects of non-compliance with the good faith participation requirement. The overall goal should be to promote meaningful access to justice for all. For purposes of ensuring justice is done, sometimes courts may force parties to the negotiating table especially where one of the parties refuses to do so with ulterior motive of defeating justice. The third party umpire in collaboration with the court, where necessary, may invent ways of dealing with power imbalances and bad faith for the sake of ensuring justice is achieved.
Standards and Accreditation of ADR practitioners
It has been argued that development of standards of practitioners will ensure much greater accountability of practitioners. Sociologists argue that professionals perform better “on stage” (in public) than they do “off stage” (in private) and this has consequences for issues of integrity in arbitration. It is also argued that documented standards would also provide a source of information to enable consumers to know what to expect of an ADR practitioner, a basis for choosing a particular type of ADR, and an ‘industry norm’ against which to measure the performance of the practitioner. They would also improve the public awareness of ADR. These standards may be provided by either professional groups or by the government.
The standards of conduct of individual professional groups are still the primary source of regulation in most states. Codes of professional conduct tailored to mediation and ADR have been issued by various professional organizations. It is argued that as governments are increasingly legislating to require parties to attend ADR, such as in the litigation context, they need to be accountable for the competence of practitioners performing these services. Legislative instruments that provide for compulsory submission of a dispute to ADR should thus also provide minimum standards of conduct for the practitioners. The provision of standards will also go towards boosting the public’s confidence in ADR, as parties need to have confidence that the quality of the ADR service will meet the standards of professionalism. Knowledge of how the practitioner’s standards are met through training and accreditation, as well as a complaints mechanism will also boost public awareness and public confidence.
Standards may, however, in detailing the structure of ADR, restrain creative ways of solving disputes, and with ADR being applicable in a variety of contexts, standards may not be applicable in all the available contexts. Standards should be formulated with the objective of ensuring a fair ADR process, protecting the consumer, establishing public confidence and building capacity in the field. Issues to consider when setting out the duties and standards of ADR practitioners include: how the practitioner is to be selected, the role of the practitioner, impartiality, conflicts of interest, competence, confidentiality, the quality of the process, the termination of the ADR process, recording settlement, publicity, advertising and fees. It has been suggested that rather than establishing a single body to accredit each mediator individually, a system is required to accredit organisations which in turn accredit mediators.
In order for these organisations to be approved, they would need to develop common standards for initial assessment, as well as ongoing monitoring, review and disciplinary processes for mediator. The downside to this kind of approach would be the risk of locking out those who acquire their skills and expertise outside this jurisdiction as it would not be clear if they would need to compulsorily become members of local organisations for accreditation. For mediation, there is already in place Mediation Accreditation Committee but for the other mechanisms it is not clear how such an approach would be implemented as there exists no body at the moment. This also risks leaving out the informal experts who may be lacking in the required ‘professional’ qualifications to qualify to join such bodies. This requires careful consideration by the concerned stakeholders.
Confidentiality of communications made during ADR and Inadmissibility of Evidence
Confidentiality is central to ADR as it allow parties to freely engage in candid, informal discussions of their interests to reach the best possible settlement of their dispute. The parties to the dispute and the neutral third party have a duty to maintain such confidentiality, with the neutral being held to a higher standard of non-disclosure. The neutral has a duty not to disclose to a third party, as well as not to disclose to the other party what has been told to him by a party in private. The question that law makers should consider is whether confidentiality should be mandated by statute, and what sanctions will be employed when breach occurs. They should also consider the circumstances under which an exception to confidentiality lies. Limitations of confidentiality arise in a variety of instances: by consent of the parties; where mandated by law; where a crime is committed or a threat is made to commit such crime.
Inadmissibility is intertwined with the issue of confidentiality of communications during ADR. This is an approach taken to protect the confidentiality of the ADR process, by statutory provision that evidence of matters in an ADR proceeding is inadmissible in later court proceedings. This issue also includes the compellability of ADR practitioners to give evidence before subsequent court proceedings. The mediation (Pilot Project) Rules, 2015 also recognises the importance of this and provides that all communication during mediation including the mediator’s notes are to be deemed to be confidential and shall not be admissible in evidence in any current or subsequent litigation or proceedings.
Protection of communications in ADR should be guaranteed as this protects the finality of the decision reached by the parties and enhances communication for purposes of resolving conflicts. If parties knew that whatever they share may later be used against them, then they would be unwilling to do so, thus, defeating the essence of engaging in ADR and TDR. One of the selling points of these mechanisms is open communication for purposes of reaching a decision or ensuring that parties are able to craft an agreement through sharing.
Finally, Lawmakers and Policy-makers should recognise the desirability of enabling diversity, flexibility and dynamism in conflict management practices and processes. They should also have in mind that ADR processes cannot be viewed in isolation. Party autonomy allows the parties to craft a hybrid process, linking different techniques and processes to meet their contextual need. They thus need to be viewed in the larger ADR context. In drafting legislation, provision should thus be made for parties to retain as much autonomy as possible.
*This article is an extract from the Article Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future, 10(1) Alternative Dispute Resolution Journal, p. 1 by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Constitution of Kenya, 2010,
Civil Procedure Act, Cap 21, Laws of Kenya.
Muigua, K., Resolving Conflicts through Mediation in Kenya. (Glenwood Publishers Ltd, Nairobi, 2012), Chap.2, pp. 20-37.
Muigua, K., “Heralding A New Dawn: Achieving Justice Through Effective Application of Alternative Dispute Resolution Mechanisms (ADR) in Kenya”, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 1, No 1, (2013), pp. 43-78.
Muigua, K., Court Sanctioned Mediation in Kenya-An Appraisal, available at http://www.kmco.co.ke/ attachments/article/152/Court%20Sanctioned%20Mediation%20in%2 0Kenya-An%20Appraisal-By%20Kariuki%20Muigua.pdf .
Muigua, K., ‘Empowering the Kenyan People through Alternative Dispute Resolution Mechanisms,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 3, No. 2, (2015), pp. 64-108.
Muigua, K., ‘Effective Justice for Kenyans: is ADR Really Alternative?’ The Law Society of Kenya Journal, Vol. II, 2015, No. 1, pp. 49-62.
Muigua, K., ‘Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 1, (2017), pp. 74-104.
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