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Why Mediation is Ideal for Managing Natural Resource-based Conflicts?

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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)*

The features of mediation including flexibility and party autonomy make the process ideal in managing natural resource-based conflicts. Mediation has been identified an extremely flexible approach to dispute resolution that puts a wide range of tools, techniques, and processes in the hands of the mediator and the parties. This flexibility provides plenty of room to bring in technical information and experts that can be seen as impartial and fair to all sides, or to use collaborative approaches to data collection, analysis, or monitoring. It also gives parties the freedom to come up with their own creative and longterm solutions to natural resource based problems.

In addition, attributes of mediation including voluntary participation and agreement, confidentiality of exchanges among parties, the search of mutually satisfactory solutions have been identified as well suited for the multi-party complex context of natural resource based conflicts. These features make mediation a viable tool in managing such conflicts by focusing on a broad range of benefits tied to natural resources, including employment opportunities, revenue, services, access and infrastructure.

Mediation can also foster effective management of natural resource- based conflicts by promoting participatory approaches towards conflict management. It has been pointed out that mediation can foster community involvement in the conflict management process through the use of peace committees, Non-Governmental Organisations, religious bodies, among other bodies within communities. This process can facilitate effective management of conflicts by addressing the root causes of such conflicts. Therefore, in case of environmental conflicts, mediation affords parties an opportunity to sustain or improve their relationships.

By encouraging participation and consensus building, mediation encourages amicable management of environmental conflicts and provide the basis for sustained relationships which is especially important where environmental projects are involved. Mediation is therefore vital in managing natural resource- based conflicts due to its ability to support the capacities of societies to manage their own conflicts. It fosters the participation of all parties at all levels, including the elites and grassroots towards effective management of natural resource- based conflicts.

It has been argued that mediation is a people centred and participatory process. It therefore shifts focus from resources to people and encourages their participation in conflict management in a manner which respects their views. Mediation therefore fosters participatory approaches towards conflict management by encouraging community-based and collaborative approaches to resource management which enable different stakeholders to participate in decision-making in order to develop and manage their resources. From the foregoing, it is evident that mediation can be effective strategy for managing natural resource- based conflicts.

According to the African Union, national and trans-boundary resource dispute management and mediation mechanisms are important ways to help different parties move from a position of conflict to one of cooperation. It further asserts that cooperating over shared resources or common challenges can help build confidence between divided groups and maintain a degree of communication. Over time, this cooperation over the environment and natural resources can have important spillover effects, further binding the parties into sharing mutual benefits and diminishing the possibility of a return to conflict.

Further, according to UNEP, natural resource based conflicts are often more amenable to mediation that other dispute management processes. UNEP points out that finding consensus and building alliances over natural resources is often easier because natural resources shape economic incentives that transcend other areas. In addition, it has been argued that mediation over natural resources can effectively help parties identify ways to maximize and share benefits, and ultimately unlock entrenched or zero-sum positions, allowing parties to develop cooperative and constructive relationships that can be carried over to other areas.

Despite its potential to foster effective management of natural resource based conflicts, it has been pointed out that mediation has not been given an adequate chance within the framework of natural resource based conflict management. According to UNEP, despite mediation being a vital tool in preventing and resolving conflicts, it is often underutilized in the context of conflicts involving natural resources. This has been attributed to several reasons including the technical nature of natural resource- based conflicts, laxity by countries to identify or act on opportunities for proactive use of mediation as a tool for conflict prevention and peacebuilding, and the political dimension of natural resource- based conflicts.

It is necessary to address these concerns in order to enhance the use of mediation in managing natural resource based conflicts. It is also imperative to deal with some of the challenges inherent in mediation such as power imbalances, enforceability challenges and lack of urgent protection measures such as injunctions in order to strengthen its role in managing natural resource- based conflicts.

*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 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*

African Union., ‘Report of the African Union Panel of the Wise on Improving the Mediation and Resolution of Natural Resource-Related Conflicts Across Africa.’ Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/31043/AUP.pdf?sequence=1 (Accessed on 22/01/2024).

Antonia. E., & Benedikt. K., ‘Negotiation and Mediation Techniques for Natural Resource Management.’ Available at https://iwrmactionhub.org/node/1988/printable/pdf (Accessed on 21/01/2024).

Bennett. L., ‘Mediation in Natural Resources and Land Conflicts.’ Available at https://climate-diplomacy.org/magazine/cooperation/mediation-natural-resources-and-landconflicts (Accessed on 21/01/2024).

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

Food and Agriculture Organization., ‘An introduction to Natural Resource Conflicts, Collaborative Management and Sustainable Livelihoods.’ Available at https://www.fao.org/3/a0032e/a0032e04.htm (Accessed on 21/01/2024).

Humphreys. M., ‘Natural Resources, Conflict, and Conflict Resolution: Uncovering the Mechanisms.’ Available at https://d1wqtxts1xzle7.cloudfront.net/30923495/ch_8_- _humphreys-libre.pdf?139220 6230=&responsecontentdisposition=inline%3B+filename%3DNatural_resources_conflict_and_conflict.pdf (Accessed on 22/01/2024).

International Organization for Peace Building., ‘Natural Resources and Conflict: A Path to Mediation.’ Available at https://www.interpeace.org/2015/11/natural-resourcesand-conflict-a-path-to-mediation/ (Accessed on 22/01/2024).

JAMS Mediation Services., ‘Mediation Defined: What is Mediation?’ Available at https://www.jamsadr.com/mediation-defined/ (Accessed on 20/01/2024).

Kaufman. S., ‘Mediation in Environmental Disputes.’ Available at https://www.eolss.net/samplechapters/c14/E1-40-03-03.pdf (Accessed on 22/01/2024).

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

Muigua. K., ‘Attaining Environmental Justice through Alternative Dispute Resolution.’ Available at https://kmco.co.ke/wp-content/uploads/2023/07/AttainingEnvironmental-Justice-throughAlternative-Dispute-Resolution.pdf (Accessed on 22/01/2024).

Muigua. K., ‘Environmental Conflict Management Institutions and Approaches.’ Available at https://kmco.co.ke/wp-content/uploads/2022/09/EnvironmentalConflictManagement-Institutions-and-Approaches.pdf (Accessed on 21/01/2024).

Muigua. K., ‘Managing Environmental Conflicts through Alternative Dispute Resolution.’ Available at https://kmco.co.ke/wp-content/uploads/2024/01/ManagingEnvironmental-Conflicts-through-Alternative-Dispute-Resolution-1.pdf (Accessed on 22/01/2024).

Muigua. K., ‘Managing Environmental Conflicts through Participatory Mechanisms for Sustainable Development in Kenya.’ Available at https://kmco.co.ke/wpcontent/uploads/2018/08/ManagingEnvironmental-Conflicts-through-ParticipatoryMechanisms-for-Sustainable-Development-in-KenyaKariuki-Muigua-August-2018.pdf (Accessed on 21/01/2024).

Muigua. K., ‘Managing Natural Resource Conflicts in Kenya through Negotiation and Mediation.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/ManagingNatural-Resource-Conflicts-in-Kenya-through-Negotiation-and-Mediation.pdf (Accessed on 22/01/2024).

Muigua. K., ‘Natural Resource Conflicts: Addressing Inter-Ethnic Strife through Environmental Justice in Kenya.’ Available at http://kmco.co.ke/wpcontent/uploads/2019/09/Natural-ResourceConflictsAddress ing-Inter-Ethnic-StrifeThrough-Environmental-Justice-in-kenya-Kariuki-Muigua7th-September2019.pdf (Accessed on 22/01/2024).

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

ReliefWeb., ‘Natural Resources and Conflict: A Guide for Mediation Practitioners.’ Available at https://reliefweb.int/report/world/natural-resources-and-conflict-guidemediation-practitioners0#:~:text =One%20of%20the%20prerequisites%20to,by%20an%20independent%20third% 20party (Accessed on 21/01/2024).

United Nations Department of Political Affairs., ‘Natural Resources and Conflict: A Guide for Mediation Practitioners.’ Available at https://gsdrc.org/documentlibrary/natural-resources-and-conflict-a-guide-for-mediation-practitioners/ (Accessed on 21/01/2024).

United Nations Environment Programme., ‘Environmental Cooperation and Peacebuilding.’ Available at https://www.unep.org/topics/fresh-water/disasters-andclimatechange/environment-security/environ mentalcooperationand#:~:text=International%20law%2C%20environment%20and%20conflict,an d%20reliance%20on%2 0conflict%20resources (Accessed on 21/01/2024).

United Nations Environment Programme., ‘Mediation Can Prevent, Resolve Natural Resources Disputes New UN Guide Launched.’ Available at https://www.unep.org/news-and-stories/pressrelease/mediation-can-prevent-resolve-naturalresources-disputes-new-un (Accessed on 22/01/2024).

United Nations Environment Programme., ‘Natural Resources and Conflict: A Guide for Mediation Practitioners.’ Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/9294/- Natural_resources_and_conflic.pdf?sequence=2&%3BisAllowed (Accessed on 20/01/2024).

United Nations Environment Programme., ‘Natural Resources and Conflict: A Guide for Mediation Practitioners.’ Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/9294/- Natural_resources_and_conflic.pdf?sequence=2&%3BisAllowed (Accessed on 20/01/2024).

United Nations Environment Programme., ‘Natural Resources and Conflict: A Guide for Mediation Practitioners.’ Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/9294/- Natural_resources_and_conflic.pdf?sequence=2&%3BisAllowed (Accessed on 22/01/2024).

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI 11 Ibid, Article 33 (1) 12 Constitution of Kenya, 2010., Article 159 (2) (c) Government Printer, Nairobi.

United Nations., ‘Basics of Mediation: Concepts and Definitions.’ Available at https://peacemaker.un.org/sites/peacemaker.un.org/files/Basics%20of%20Mediation.pdf (Accessed on 20/01/2024).

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

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What is Carbon Markets?

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Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

  1. A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
  2. A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
  3. The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
  4. Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
  5. The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

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Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

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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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KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

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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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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

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