By Anne Nakhungu Cheloti

On the 18th of October 2023, Ms. Helen Ambasa, Director of Legal Services, moderated a panel discussion on Alternative Dispute Resolution (ADR) whose main aim was debunking the myths surrounding the subject. The panel included a team from Gikera and Vadgama Advocates, led by Kananu Mutea, Partner and Head of Dispute Resolution, Julie Mulindi, and Luke Ong’wen, who are both Associates in the Dispute Resolution Department.

Some of the myths surrounding Alternative Dispute Resolution that were debunked during the panel discussion were: Mediation always leads to compromises, Mediation leads to a verdict, ADR is expensive, It is not always worth going to court if you have a good case and, whether mediation is effective for big cases. The panelists assisted in debunking these myths and providing a better understanding of the role of ADR in dispute resolution as depicted in the sections below.

Alternative Dispute Resolution (ADR) can be defined as a means by which parties to a dispute can resolve the dispute and reach an agreement without trial. There are various forms of ADR. These include: Arbitration, Negotiation, Mediation, Conciliation. Article 159(2)(c) of the Constitution of Kenya provides that these alternative forms of dispute resolution shall be among the guiding principles for courts and tribunals.

The panelists provided insight on the key differences between the various forms of ADR. Arbitration was described as the most formal. It requires parties to a dispute to agree to submit their dispute to arbitration. A third-party individual is then selected who will act as the arbitrator in the matter and eventually reach a decision on behalf of the parties that will be binding on them. Mediation was described as a form of ADR which involves the facilitation of discussions between the parties in dispute. A neutral third party known as a mediator is selected and they assist the parties to communicate and understand each other’s perspective. The mediator unlike the arbitrator, does not issue legal advice or impose a decision on the parties. The mediator allows the parties to reach an agreement acceptable to both parties. Conciliation is similar to mediation in the sense that it is a voluntary process which involves a third party known as a conciliator. The panelists stipulated that Conciliation can be applied where a trade union has a dispute with an employer. The conciliator acts in the same capacity as a mediator by facilitating the discussion between the trade union and the employer. Negotiation unlike arbitration, mediation and, conciliation does not involve a third party. The parties to the dispute have to agree to negotiate. It is a voluntary process meaning that both parties have to be willing to engage. Negotiation can be either direct or indirect. Direct negotiation involves the affected parties, while indirect negotiation involves their representatives.

The panelists also emphasized that for ADR to be effective certain fundamentals had to be present. These were: Trust in the process, Trust in the outcome and Honesty.

Additionally, the panelists provided some advantages associated with the use of Alternative Dispute Resolution. These include: ADR gives the parties more control over the process and the solution, there is no publicity meaning that it is private and confidential, ADR is less formal and could sometimes involve non-legal discussions especially in Negotiation and Mediation, that the third parties in ADR do not have to be lawyers, they can be trained persons from other professions, and lastly, some forms of ADR such as Negotiation, are less costly. The panelists further elaborated on the conversation surrounding confidentiality. They clarified that maintaining confidentiality is intended to allow for open and unrestricted communication between parties. To preserve privilege, parties are required to sign a confidential agreement. Therefore, if either of the parties proceeds with the matter to court and produces the documents, the court will expunge the documents from the record. It is only in the event that an agreement cannot be reached and/or one of the parties has failed to fulfil the terms of the agreement that either of the parties may file a suit in court.

The panelists further spoke on ADR in the criminal justice system. Some of the matters discussed were: The diversion policy which was introduced by the Office of the Director of Public Prosecutions (ODPP) in 2019. The aim of this policy was to give offenders a second chance. The offender is first required to be taken through a victim impact assessment and if successful, the agreement is then prepared by the prosecutor and signed by the offender. Thereafter, they are to sign an agreement that sets out the terms of the diversion which if breached will bear particular consequences, including prosecution. Further, the panelists emphasized that such agreements, if procured by fraud or misrepresentation, can be cancelled. Diversion is achieved through reintegration of the individual back to society such that they avoid a criminal record but are still held liable for their actions. Nonetheless, there are some instances when diversion cannot be applied such as in cases of rape and murder, defilement as well as capital offences.

Additionally, the panelists discussed the use of Traditional Dispute Resolution Mechanisms (TDRMs) in court. They stipulated that the Constitution makes provision for the application of TDRMs in so far as they do not contravene the Bill of Rights, are not repugnant to justice and morality and, are not inconsistent with the Constitution or any other written law. They further made reference to the SM Otieno case where the court allowed for the application of TDRMs. Lastly, they added that TDRMs are typically applied in misdemeanors.

Finally, each of the panelists offered key points concerning ADR. These included: that ADR when properly used is a very welcome tool; it is a friend, that ADR is not a universal remedy for all disputes but it is useful in certain situations, and lastly, that ADR allows parties control to participate in creative solutions that allow them to think outside the box and weigh their choices wisely. They concluded by informing participants about where they can gain certification in Arbitration and Mediation.