AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS BY MUENI MUTUNGA

AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS Outline 1. What is ADR? 2. Why ADR 3. Basis for ADR 4. Various ADR mechanisms 5. Conclusion

What is ADR? ADR refers to the process of resolving disputes other than litigation. These includes:- a) Arbitration b) Negotiation c) Mediation d) Conciliation e) Adjudication f) Expert Determination g) Ombudsman

BASIS FOR ADR  Constitutional provision, Article 159 entrenches ADR as part of Kenya’s dispute resolution mechanism.  The Civil Procedure Act Section 59 (court Annexed mediation)  Article 33 of United Nations Charter.

WHY ADR  Lowering cost.  Enhance access to justice and resolve disputes expeditiously.  Retaining party relationships – the more formal the process like litigation, the higher the danger of potentially damaging the relationship between the disputants.  Maintaining party autonomy – the more formal the process the higher the level of 3 rd party involvement.

ADR MECHANISM 1. Arbitration  Arbitration is a process that is subject to statutory controls i.e Arbitration Act 1995, The Civil Procedure Act.  It arises where a private tribunal or an individual is appointed to determine a dispute and render a final binding decision called an award.  In Arbitration any person can represent a party in the dispute.  The process is adversarial and in many ways resembles litigation.  An arbitration award can be filed in court for enforcement.

2. Negotiations  Negotiations is any form of communication between two or more people for purposes of arriving at a mutually agreeable solution to a dispute.  In negotiations the disputants may represent themselves or may be represented by agents. Whatever the case the disputants have control of the negotiating process.  The objective of negotiations is to arrive at a “win- win” solution to the dispute at hand.

3. Mediation  Mediation is a non binding process in which an impartial party ( Mediator) facilitates negotiation process between the disputants.  The mediator has no decision making powers and the parties maintain control over the process and the substantive outcome of the mediation process.  In mediation the parties are assisted to voluntarily reach their own mutually acceptable settlement of the issues in dispute.  Since mediations is, in essence a form of assisted negotiation, it does not have a direct legal authority.  It also affords the disputants authority over the mediator, mediation, over the process and over outcome and preserves relationships.

4. Conciliation  Conciliation is not universally defined mechanism and may bear different meanings in different jurisdictions.  Locally it is described as a mechanism used to test the possibility of two disputing parties making up and assuming prior cordial relationship.  The Commission for conciliation, mediation and arbitration of S. Africa defines it process where a Commissioner meets with parties in a dispute and explores ways to settle the dispute by agreement.  The 3 rd party, a Conciliator separately discusses the dispute with each party, then prepares a solution based on what he considers to be just and optimal compromise.  Conciliation is used to restore the parties to the pre- dispute relationship after which other ADR technique may be applied.  In conciliation, the conciliator is the Architect and designer of the solution.

5. Adjudication  Adjudication is defined as a dispute settlement mechanism where an impartial 3 rd party ( Adjudicator) makes a fair, rapid and inexpensive decision on a given dispute arising from a construction project.  Adjudication is thus limited and appropriate to unique needs in construction industry, which usually involves Engineering and civil contracts.  The adjudicators decision operates as binding order unless the matter is referred to Arbitration or litigation.

6. Expert Determination  This is a process where Parties submit issues and dispute to an expert knowledgeable in a particular field of dispute for determination.  The expert evaluates the dispute and makes a decision based on his expertise, i.e an accountant valuing shares in a company.  It is also used in the construction industry to determine issues of a specific technical nature or specialized kind.

7. Ombudsman  Ombudsman is an organizations designated person who confidentially receives, investigates and facilitates resolution of complaints.  The ombudsman may meet, discuss and advise the parties or even review evidence but normally is not empowered to impose decisions.  The mechanism can also exist within government set ups as exist in Kenya.  In Kenya the Ombudsperson handles complaints from the public and tries to resolve them outside courts.

CONCLUSION  Conflicts are part of society, and any mechanism employed to resolve conflicts, ought to, as much as possible, help to create an environment that fosters development, peace and social justice amongst other positive values.  With the growth in population, courts can only handle a fraction of all disputes that arise in society.  In litigation, the dispute settlement more often that not leaves broken relationships and possibility of recurring or fresh dispute arising in the event a party is discontent.  ADR mechanisms are thus better suited to manage conflicts where relationships matter, i.e workplace  However, litigation has its place in resolving conflicts for example in instances of power imbalance and where there is need to protect human rights.