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Ethics, Integrity and Best Practices in Mediation

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Ethics, integrity and best practices are fundamental in mediation. They serve various functions such as guiding the conduct of mediators, informing parties to the mediation process about the standards they should expect during the process and promoting public confidence in mediation as a conflict management process. Various standards have been developed towards enhancing ethics, integrity and best practices in mediation.

Impartiality

Impartiality in mediation requires a mediator to refrain from exhibiting favoritism or prejudice towards any party or any position taken by a party in mediation. A mediator is expected to remain impartial throughout the course of the mediation. Further, impartiality requires a mediator to be aware of and avoid the potential for bias based on circumstances such as the parties’ backgrounds, personal attributes, or conduct during the session, or based on any pre-existing knowledge of or opinion about the merits of the dispute being mediated. In the event that a mediator is unable to conduct the mediation process in an impartial manner, he or she is expected to withdraw from conducting the mediation.

Conflict of Interest

A mediator is expected to avoid any conflict of interest during the conduct of the mediation. Conflict of interest in mediation may arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any party to the mediation, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. In order to avoid such situations, a mediator is expected to disclose all actual and potential conflicts of interest known to him or her. Further, the mediator is expected to disclose instances of conflict of interest that may arise during the course of the mediation. The rules on conflict of interest are aimed at preventing bias in mediation and fostering fairness and integrity of the mediation process.

Competence

Competence requires a mediator to know the limits of his or her ability; to avoid taking on disputes that he or she is not equipped to handle; and to communicate candidly with the parties about his or her background and professional experience. Competence in mediation comprises of appropriate knowledge and skills which would normally be acquired through training, education, and experience. It has been asserted that a person who agrees to act as a mediator holds out to the parties an appropriate level of expertise and competence to mediate effectively. As a result, a mediator is expected to avoid taking disputes in cases where such a mediator is not competent and withdraw from acting in cases where he or she can longer competently manage the dispute. Competence is vital in ensuring the integrity and appropriateness of the mediation process.

Privacy and Confidentiality

and confidentiality are among the key attributes of mediation. These features require mediators to safeguard the privacy of the mediation process by refraining from disclosing any matter that arose during the mediation including information about how the parties acted in the mediation process, the merits of the case, any settlement offers or agreed outcomes unless the parties agree otherwise. Privacy and confidentiality are central to mediation since they allow parties to freely engage in candid, informal discussions of their interests towards reaching the best possible resolution of their dispute without concerns of such information leaking to third parties. Mediators therefore have a duty to maintain privacy and confidentiality and not disclose any information to third parties unless in situations where such disclosure is allowed. Privacy and confidentiality are cardinal in upholding ethics, integrity and best practice in mediation.

Quality of the Mediation Process

A mediator has an ethical duty to safeguard the quality of the mediation. He or she should ensure that the mediation proceedings are conducted in a satisfactory manner by encouraging mutually respectful behaviour among the parties. A mediator should further be diligent and ensure procedural fairness in order to foster the quality of the mediation. In addition, the mediator should discourage conduct by the parties which may undermine the quality of the mediation proceedings and terminate such proceedings where the parties’ conduct undermine the quality of the mediation.

Costs and Fees

Mediators have an ethical duty to ensure full and fair disclosure of any costs and fees that the parties will incur during the mediation. In order to ensure integrity and best practice in regards to fees, a mediator is required to obtain an agreement from the parties about the fees and charges payable for the mediation and about how those fees and charges are to be apportioned between them. Further, a mediator should not charge fees based on the outcome of a mediation or calculated in a way that could influence the manner in which the mediator conducts the mediation. A mediator is therefore expected to ensure appropriateness and reasonableness of fees in order to uphold the integrity of the mediation.

Termination of Mediation

In order to uphold integrity and best practice in mediation, a mediator has an ethical duty to terminate the mediation proceedings in cases where a party is abusing the process or where there is no reasonable prospect for a resolution. A mediator may also terminate mediation proceedings if he or she is of the view that a resolution is being reached that to the mediator appears unenforceable or illegal having regard to the circumstances of the dispute and the competence of the mediator for making such an assessment. Termination of mediation proceedings is a key measure towards upholding ethics, integrity and best practice in mediation by preventing abuse of the mediation process and outcomes that may be illegal or unenforceable.

*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

Burns. R., ‘Some Ethical Issues Surrounding Mediation.’ Available at https://www.researchgate.net/publication/228187058_Some_Ethical_Issues_Surrounding_M ediation#:~:text=A%20progressively%20larger%20portion%20of,of%20mediation%20with out%20much%20change. (Accessed on 19/10/2023).

Bush. R., ‘The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications.’ Available at https://www.beyondintractability.org/bksum/bushdilemmas (Accessed on 19/10/2023).

Constitution of Kenya, 2010, Government Printer, Nairobi.

Fullerton. R., ‘The Ethics of Mediation-Arbitration.’ Available at https://www.richardfullerton.com/ethics _ article.pdf (Accessed on 18/10/2023).

Hoffman. D., ‘Ten Principles of Mediation Ethics.’ Available at https://blc.law/wpcontent/uploads/2016/12/2005-07-mediation-ethicsbranchmainlanguagedefault.pdf (Accessed on 18/10/2023).

International Chamber of Commerce., ‘Mediation Rules, in force as from 1st January 2014.’ Available at https://iccwbo.org/wp-content/uploads/sites/3/2020/12/icc-2021- arbitration-rules-2014-mediation-rules-english-version.pdf (Accessed on 18/10/2023).

JAMS Mediation Services., ‘Mediators Ethics Guidelines.’ Available at https://www.jamsadr.com/mediators-ethics/ (Accessed on 18/10/2023).

Kigali International Arbitration Centre., ‘Mediation Rules, 2015.’ https://kiac.org.rw/wp-content/uploads/2023/06/Mediation-Rules.pdf (Accessed on 19/10/2023).

Law Council of Australia., ‘Ethical Guidelines for Mediators.’ Available at https://lawcouncil.au/docs/db9bd799-34d8-e911-9400-005056be13b5/Ethical (Accessed on 18/10/2023).

McCorkkle. S., ‘The Murky World of Mediation Ethics: Neutrality, Impartiality, and Conflict of Interest in State Codes of Conduct.’ 23 Conflict Resol. Q. 165 (2005-2006).

Meadow. C., ‘Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not’ University of Miami Law Review, Volume 56, No.4.

Mediation Training Institute, East Africa., ‘Charging for Mediation.’ Available at https://mtieastafrica.org/mediation-centre/charges-for-services/ (Accessed on 18/10/2023).

Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-to-justice-anddevelopment-inKenyaSTRATHMORE-CONFERENCE-PRESENTATION.pdf (Accessed on 17/10/2023).

Muigua. K., ‘Achieving Lasting Outcomes: Addressing the Psychological Aspects of Conflict through Mediation.’ Available at https://kmco.co.ke/wpcontent/uploads/2018/08/Addressing-the-Psychological-Aspects-of-Conflict-ThroughMediation-3RD-AUGUST-2018-1.pdf (Accessed on 19/10/2023).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Promoting Professional Conduct, Ethics, Integrity & Etiquette in ADR.’ Available at https://kmco.co.ke/wp-content/uploads/2022/05/PromotingProfessionalConduct-Ethics-Integrity-Etiquette-in-ADR.pdf (Accessed on 18/10/2023).

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wp-content/uploads/2023/06/ Reframing-Conflict-Management-in-theEast-African-Community-Moving-from-Alternative-to-Appropriate-Dispute-Resolution1.pdf (Accessed on 17/10/2023).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

Nairobi Centre for International Arbitration (NCIA), Code of Conduct for Mediators, 2021, available at https://ncia.or.ke/wp-content/uploads/2021/07/5.-NCIACODE-OF-CONDUCT-FOR-MEDIATORS2021.pdf (Accessed on 18/10/2023).

Nairobi Centre for International Arbitration (NCIA)., Mediation Rules, 2015., Available at https://ncia.or.ke/wp-content/uploads/2021/02/mediation_rules_2016.pdf (Accessed on 18/10/2023).

Shako. F., ‘Mediation in the Courts’ Embrace: Introduction of Court-Annexed Mediation into the Justice System in Kenya’ Alternative Dispute Resolution (2017): 130.

The London Court of International Arbitration., Mediation Rules effective 1st October 2020., Available at https://www.lcia.org/Dispute_Resolution_Services/lcia_mediation_rules_2020.asp x (Accessed on 18/10/2023).

The World Bank., ‘Court Annexed Mediation Offers Alternative to Delayed Justice for Kenyans.’ Available at https://www.worldbank.org/en/news/feature/2017/10/05/courtannexed-mediation-offers-alternative-to-delayed-justice-for-kenyans (Accessed on 17/10/2023).

United Nations Commission on International Trade Law Mediation Rules, 2021., Available at https://uncitral.un.org/sites/uncitral.un.org/files/mediadocuments/uncitral/en/22-01369_mediation_rules_ebook_1.pdf (Accessed on 18/10/2023).

United Nations General Assembly., ‘United Nations Convention on International Settlement Agreements Resulting from Mediation.’ A/73/496., Available at https://uncitral.un.org/sites/uncitral.un.org/files/singapore_convention_eng.pdf (Accessed on 18/10/2023).

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Uwazie. E., ‘Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability.’ Africa Security Brief, No. 16 of 2011.

News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

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The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution”  Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

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Way Forward in Applying Collaborative Approaches Towards Conflict Management

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

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Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

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Isenhart. M.W., & Spangle. M., ‘Summary of “Collaborative Approaches to Resolving Conflict” ‘ Available at https://www.beyondintractability.org/bksum/isenhart-collaborative (Accessed on 01/03/2024).

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Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-inKenyaRevised-version-of-20.10.14.pdf (Accessed on 01/03/2024).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/06/ Reframing-ConflictManagement-in-the-East-African-CommunityMoving-from-Alternative-toAppropriate-Dispute-Resolution (Accessed on 01/03/2024).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

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News & Analysis

Opportunities and Challenges of Collaborative Conflict Management

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

One of the key collaborative approaches that can be applied in conflict management is mediation. Mediation has been 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 discussions and the flow of information, and thus aiding in the process of reaching an agreement.

Mediation is usually a continuation of the negotiation process since it arises where parties to a conflict have attempted negotiations, but have reached a deadlock. Parties therefore involve a third party known as a mediator to assist them continue with the negotiations and ultimately break the deadlock. A mediator does not have the power to impose a solution upon the parties but rather facilitates communication, promotes understanding, focuses the parties on their interests, and uses creative problem solving to enable the parties to reach their own agreement.

Some of the core values and principles guiding mediation as a collaborative approach towards conflict management include impartiality, empathy, valued reputation, and confidentiality. It has also been pointed out that mediation has certain attributes which include informality, flexibility, efficiency, confidentiality, party autonomy and the ability to promote expeditious and cost effective management of dispute which makes it an ideal mechanism for managing disputes.

Mediation is an effective mechanism that can foster collaboration due to its potential to build peace and bring people together, binding them towards a common goal. Mediation can also foster effective management of conflicts by building consensus and collaboration. It has been argued that mediation can enhance collaboration towards conflict management due to its emphasis on the need for a mediator who listen to the wants, needs, fears, and concerns of all sides. Therefore, for mediation to be effective in fostering collaboration, the approach must be mild and non-confrontational because the goal is to make all parties feel comfortable expressing their views and opinions.

Another key collaborative approach towards conflict management is negotiation. It has been defined as an informal process that involves parties to a conflict meeting to identify and discuss the issues at hand so as to arrive at a mutually acceptable solution without the help of a third party. Negotiation is one of the most fundamental methods of managing conflicts which offers parties maximum control over the process66. It aims at harmonizing the interests of the parties concerned amicably. Negotiation has been described as the process that creates and fuels collaboration.

Negotiation fosters collaboration since it involves all parties sitting down together, talking through the conflict and working towards a solution together. Negotiation has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone. It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. If negotiation fails, parties may resort to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party.

Facilitation is another key collaborative approach towards conflict management. Facilitation entails a third party known as a facilitator who helps parties to a conflict to understand their common objectives and achieve them without while remaining objective in the discussion. A facilitator assists conflicting parties in achieving consensus on any disagreements so that they have a strong basis for future action.

It has been pointed out that facilitation is effective in fostering collaboration in conflict management particularly in conflicts which are complex in nature or those that involve multiple parties. In such conflicts, it is necessary to seek outside help from a neutral third party to facilitate the discussion as parties work towards mutually acceptable outcomes.

Applying collaborative approaches towards conflict management offers several advantages. It has been pointed out that collaborating results in mutually acceptable solutions. Such solutions can therefore be effective and long lasting negating the likelihood of conflicts reemerging in future. Collaborating signifies joint efforts, gain for both parties and integrated solutions arrived at by consensual decisions.

Collaborating is also very effective when it is necessary to build or maintain relationships since it focuses on the needs and interests of all parties in a dispute. It has been observed that collaborative approaches emphasize trust-building, open communication, and empathizing with each other’s perspectives which goes beyond resolving conflicts to facilitate deeper understandings of each other. Collaborative approaches can therefore lead to better interpersonal connections.

Collaborating can also result in constructive decision-making since encouraging active engagement and open dialogue helps others think outside of the box and explore innovative paths towards conflict management. Further, by encouraging the participation and involvement of all stakeholders, collaboration ensures that everyone feels heard, valued and understood which is very essential in managing conflicts.

In addition, collaborating sets the tone for future conflict resolutions since it gives those involved the shared responsibility to resolve their problems. However, collaborative approaches towards conflict management have also been associated with several drawbacks. For example, it has been observed that collaborative approaches may not be easy to implement since they involve a lot of effort to get an actionable solution. It has been observed that thorough discussions, active participation, and exploring multiple perspectives as envisaged by collaborative approaches take time.

Collaborating may therefore require patience and dedication to ensure all voices are heard and meaningful resolutions are reached. Achieving consensus through collaborative approaches can also be difficult since conflicting opinions, varying conflict goals, and emotional variables can make the consensus-building process challenging and time-consuming. As a result of these challenges, it has been asserted that collaborative approaches towards conflict management are frequently the most difficult and time-consuming to achieve.

Further, it has been argued that over use of collaboration and consensual decision-making may reflect risk aversion tendencies or an inclination to defuse responsibility. Despite these challenges, collaborative approaches towards conflict management are ideal in ensuring win-win and long lasting outcomes. It is therefore necessary to embrace and apply collaborative approaches towards conflict management.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

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