By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*

In the past, litigation has been the major conflict management channel widely recognised under our laws as a means to accessing justice. As recognition of the challenges associated with litigation, the Constitution under article 159 now provides that alternative forms of dispute resolution including reconciliation, mediation, arbitration and Traditional Dispute Resolution Mechanisms should be promoted as long as that they do not contravene the Bill of Rights and are not repugnant to justice or inconsistent with the Constitution or any written law. To facilitate this, it provides that in exercising judicial authority, the courts and tribunals are to be guided by the principles of inter alia: justice is to be done to all, irrespective of status; justice is not to be delayed; alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms are to be promoted, subject to clause (3); justice is to be administered without undue regard to procedural technicalities; and the purpose and principles of this Constitution are to be protected and promoted.

Alternative dispute resolution refers to all those decision-making processes other than litigation including but not limited to negotiation, enquiry, mediation, conciliation, expert determination, arbitration and others. One of the major reasons that Alternative Dispute Resolution Mechanisms (ADR) found their way into the current Constitution of Kenya 2010 was to expand channels through which justice, which was largely perceived to be a privilege reserved for a select few who had the financial ability to seek the services of the formal institutions of justice, could be dispensed to all without discrimination. The Constitution of Kenya guarantees the right of every person access justice.51 Access to justice also includes the use of informal conflict management mechanisms such as ADR and traditional dispute resolution mechanisms, to bring justice closer to the people and make it more affordable. ADR mechanisms mainly consist of negotiation, conciliation, mediation, arbitration and a series of hybrid procedures.

The Constitution of Kenya 2010 also recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. The traditions, customs and norms of a particular community have always played a pivotal role in conflict resolution and they were highly valued and adhered to by the members of the community. Article 159 (1) of the Constitution provides that judicial authority is derived from the people and is vested and exercised by courts and tribunals established under the constitution. In exercise of that authority, the courts and tribunals are to ensure that justice is done to all, is not delayed and that it is administered without undue regard to procedural technicalities.

Article 159(1) echoes the right of all persons to have access to justice and also reflects the constitutional spirit of every person’s equality before the law and the right to equal protection and equal benefit of the law. For this constitutional right of access to justice to be realized, there has to be a framework based on the principles of: expedition; proportionality; equality of opportunity; fairness of process; party autonomy; cost-effectiveness; party satisfaction and effectiveness of remedies. Recognition of ADR and traditional dispute resolution mechanisms is thus predicated on these cardinal principles to ensure that everyone has access to justice (whether in courts or in other informal fora) and conflicts are to be resolved expeditiously and without undue regard to procedural hurdles that bedevil the court system.

Negotiation

Negotiation is considered the most basic dispute resolution mechanism with parties having autonomy over the process of reaching a mutually acceptable decision without assistant from third parties. Negotiation is one of the mechanisms that bring about conflict resolution and are non-coercive in that the parties have autonomy about the forum, the process, the third parties involved and the outcome. Non-coercive methods allow parties to work through their conflict, address its underlying causes, and reach a resolution to that conflict. Resolution means that the conflict has been dealt with and cannot re-emerge later. Within negotiations disputants meet to discuss mutual or opposing interests despite the parties having equal or unequal powers to reach a win-win solution.

Negotiation is the first step to mediation. The negotiation phase is the one during which the parties hammer out an agreement, or even agree to disagree and it is during this stage that the core issues of the conflict are negotiated or bargained. The aim of negotiation is to harmonize the interests of the parties concerned amicably. This mechanism involves the parties themselves exploring options for resolution of the dispute without involving a third party. In this process, there is a lot of back and forth communication between the parties in which offers for settlement are made by either party. If agreed upon by the other party, the dispute is deemed to have been resolved amicably.

There are two extreme styles of negotiating; there is what is referred to as the competitive bargaining or hard bargaining style and there is the co-operative bargaining style or soft negotiating. The competitive negotiators are so concerned with the substantive results that they advocate extreme positions. They create false issues, they mislead the other negotiator, they even bluff to gain advantage. It is rare that they make concessions and if they do, they do so arguably, they may even intimidate the other negotiator. Cooperative negotiators are more interested in developing a relationship based on trust and cooperation they are therefore more prepared to make concessions on substantive issues in order to preserve that relationship. 63 Negotiations between parties in commercial disputes can go a long way in pre-empting a full-fledged dispute by helping parties resolve them before they become too complicated. Negotiation leads to mediation in the sense that the need for mediation arises after the conflicting parties have attempted negotiation but have reached a deadlock.

Mediation

Mediation is a voluntary, informal, consensual, strictly confidential and non-binding dispute resolution process in which a third party helps the parties to reach a negotiated solution. It is also defined as a method of conflict management where conflicting parties gather to seek solutions to the conflict, with the assistance of a third party who facilitates discussion and the flow of information, and thus aiding in the processes of reaching an agreement. Mediation allows parties to have autonomy over the choice of the mediator, the process and the outcome. The process is also associated with voluntariness, cost effectiveness, informality, focus on interests and not rights, creative solutions, personal empowerment, enhanced party control, addressing root causes of the conflict, non-coerciveness and enduring outcomes.

The central quality of mediation is its capacity to reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship. In conflict resolution processes like mediation, the goal, then, is not to get parties to accept formal rules to govern their relationship, but to help them to free themselves from the encumbrance of rules and to accept a relationship of mutual respect, trust, and understanding that will enable them to meet shared contingencies without the aid of formal prescriptions laid down in advance. The salient features of mediation are that it emphasizes on interests rather than (legal) rights and it can be cost – effective, informal, private, flexible and easily accessible to parties to conflicts. These features are useful in upholding the acceptable principles of justice: expedition; proportionality; equality of opportunity; fairness of process; party autonomy; cost-effectiveness; party satisfaction and effectiveness of remedies, thus making mediation a viable process for the empowerment of the parties to a conflict.

The biggest advantage of mediation has been identified as its ability to ensure that the entire process is strictly confidential. In addition, mediation saves time and financial and emotional cost of resolving a dispute, thereby, leads to reestablishment of trust and respect among the parties. Court Annexed Mediation is also taking root in the country, especially with the fairly successful Judiciary pilot project on Court Annexed Mediation, which commenced on 4th April, 2016 at the Family Division and Commercial and Admiralty Division of the High Court in Nairobi. The pilot project was mainly introduced as a mechanism to help address the backlog of cases in Kenyan court. Case backlog is arguably one of the indicators used to assess the quality of a country’s judicial system. Mediation has been applied in resolving a wide array of commercial disputes. It works just like negotiation only that it has a third party who helps parties negotiate their needs and interests.

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. It has all the advantages and disadvantages of negotiation except that the conciliator can propose solutions making parties lose some control over the process. Conciliation is different from mediation in that the third party takes a more interventionist role in bringing the two parties together. Conciliation works well in labour disputes. A conciliator who is more knowledgeable than the parties can help parties achieve their interests by proposing solutions, based on his technical knowledge that the parties may be lacking in. This may actually make the process cheaper by saving the cost of calling any other experts to guide them. Conciliation and reconciliation can play a significant role in empowering parties to a dispute by giving them substantial control over the process.

*This article is an extract from published article “Utilising Alternative Dispute Resolution Mechanisms to Manage Commercial Disputes,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. 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 as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa. 

References

Muigua, K., “Utilising Alternative Dispute Resolution Mechanisms to Manage Commercial Disputes,” Available at: http://kmco.co.ke/wp-content/uploads/2018/09/Utilising-Alternative-Dispute-Resolution-Mechanisms-to-Manage-Commercial-Disputes-Kariuki-Muigua-7th-September-2018.pdf (accessed 09 July 2022).