ALTERNATIVE DISPUTE RESOLUTION MECHANISMS

These are methods of dispute resolution out of court and include: Arbitration, mediation, negotiation etc.

ARBITRATION
This is an out of court method of settlement of civil disputes arbitral tribunals which make arbitral awards as opposed to judgments.
The law relating to arbitration in Kenya is contained in the Arbitration Act2,. Under the Act, an arbitration agreement is an agreement between parties to refer to arbitration all or certain disputes arising between them.
Principles of Natural Justice in Relation to Arbitration proceedings are a fundamental requirement of justice in deciding a dispute between two or more parties.
Firstly, that the arbitrator or the tribunal must be and must be seen to be disinterested and unbiased. Secondly, every party must be given a fair opportunity to present his case and to answer the case of his opponent.
The first principle is embodied in Section 13 of the Arbitration Act which provides that when a person is approached for appointment as an arbitrator he must disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. That duty on the part of the arbitrator is a continuing duty right from the time that he is approached through to the time he accepts appointment, conducts the reference, and renders his award.
So under Section 13(2) the arbitrator is obliged through the arbitral proceedings to disclose without delay such circumstances.
The arbitrator must be on his guard with respect to connections with a party or connections in the subject matter of dispute or connections with the nature of the dispute. And the test that the arbitrator must always bear in mind is whether a reasonable person not being a party to the dispute would think that the connection was close enough to cause the arbitrator to be biased.
An arbitration agreement must be written, it may take the form of a detailed agreement or a clause in the agreement.
The Arbitration Act governs national and international disputes

 

METHODS OF REFERENCE TO ARBITRATION
A dispute may be referred to arbitration by:
1. The parties to the agreement
2. An Act of Parliament
3. A court of law with consent of the parties to the dispute.

APPOINTMENT OF ARBITRATORS OR ARBITUAL TRIBUNAL
Arbitrators may be appointed by:
1. The parties to the dispute
2. A third party as agreed to the parties
3. The High Court on application
Under section 12 (1) of the arbitration Act, the High Court may appoint an Arbitrator on application if:
a) The parties cannot agree as to who the single arbitrator shall be
b) In the case of two arbitrators, either party has failed to appoint an arbitrator within 30 days of receipt of the parties notice to do so.
c) The two arbitrators fail to appoint a 3rd arbitrator within 30 days of their appointment.

POWERS OF THE ARBITRATOR
1. To determine whether it has jurisdiction to hear the dispute.
2. To provide interim relief or remedies where necessary
3. To demand security from either party
4. To determine the admissibility of evidence
5. To administer oaths
6. To examine persons on oath.

DUTIES OF THE ARBITRATOR
1. Once the arbitrator is pointed, he must enter upon his duties without undue delay. And if the terms of appointment dictate he must make an interim award, however, at the conclusion of the process he is bound to make a final award.
2. The decision of the arbitrator is known as an award. It must be written setting out the reasons for the decisions. It must be majority and must be signed all arbitrators. It must specify the date and the place at which it was made.

RECOURSE TO THE HIGH COURT
Under section 35 (1) of the Arbitration Act, the High Court has jurisdiction to set aside an arbitral award an application either of the parties.
The award will be set aside if the court is satisfied that:
1. One of the parties to the arbitration agreement had no capacity to enter into it.
2. The arbitration agreement was invalid in law.
3. The party was not offered sufficient notice for the appointment of a arbitral tribunal.
4. The arbitral tribunal was not constituted in accordance with the terms of the agreement.
5. The award relates to a dispute not contemplated the agreement.
6. The award is contrary to public policy of Kenya.
7. The dispute is incapable of resolution arbitration.

Once the award is set aside, the parties are free to file the dispute in a court of law. Arbitral proceedings may be terminated in the following ways:
1. The making of the final award
2. Withdrawal of the complaint
3. Mutual consent of the parties.

ADVANTAGES OF ARBITRATION
1. Cheap: It is relatively to see a dispute through arbitration hence a saving on cost on the part of the parties.
2. Speed: It is a faster method of dispute resolution in that the diaries of arbitrators are generally accommodative.
3. Convenience: Arbitral proceedings are conducted at the convenience of the parties in terms of venue, time, the law and language applicable.
4. Informality: Arbitral tribunals are generally free from technicalities which characterize ordinary courts.
5. Expertise, knowledge and specialization: Parties are free to refer their dispute to themost specialized arbitrator in that field.
6. Privacy / confidentiality: Arbitral proceedings are conducted in private free from public scrutiny. The parties enjoy the requisite confidentiality.
7. Flexibility: Arbitral tribunals are not bound previous decisions. This affords them the necessary room to explore.
8. It tunes down acrimony: Arbitral proceedings are less acrimonious and parties generally leave the proceedings closer than they would have been in the case of a court of law.

 

DISADVANTAGES OF ARBITRATION
1. Likelihood of miscarriage of justice: Arbitral proceedings may at times not guarantee justice, particularly if the question is complex and the arbitrator is not well versed in law.
2. Arbitral awards have no precedential value i.e. cannot be relied upon in other disputes.
3. Arbitral tribunals exercise unregulated discretion.

NEGOTIATION
“meet and sit down and try and arrive at a conflict resolution without help of a third party”
Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution. In a negotiation the disputants may represent themselves or they may be represented agents and whatever the case, whether they are represented or not represented, they have control over the negotiation process.
It is basically talking or communicating. It is the two parties alone, without a neutral third party.
There are two extreme styles of negotiating. There is what is referred to as the competitive bargaining style and there is the co-operative bargaining style or hard bargaining and soft negotiating.

COMPETITIVE/ HARD NEGOTIATION
The competitive negotiators are concerned with the substantive results. They advocate extreme positions. They create false issues, they mislead the other negotiator and they even bluff to gain advantage. It is rare that they make concessions and if they do, they do so arguably. They may even intimidate the other negotiator.

ADVANTAGES OF COMPETITIVE NEGOTIATION:
1. The hard negotiator is likely to get a better bargain especially in circumstances where such a negotiator is negotiating with a co-operative negotiator;
2. If a negotiator is a professional negotiator i.e. one who is called upon to negotiate on behalf of parties, he is likely to develop a reputation which will be useful in future negotiations;
3. The competitive negotiator is not open to easy manipulation;
4. A negotiator of that style is also likely to take initiative and to take a lead role in negotiations;

DISADVANTAGES:
1. The solution that comes out of such hard negotiations is likely to be a fragile one and therefore not long lasting;
2. The other party is likely to come out of the negotiations feeling like maybe they gave too much and this may create ill feelings;
3. The competitive or hard negotiator may reason of his approach fail to take an opportunity to reach a good deal because of the attitude that he must have his way;
4. It may harm the relationship between the disputants;
5. It may also create misunderstanding the fact that the interests of the party maybe compromised;
6. The competitive bargainer or negotiator is unlikely to be aligned to the concerns of the other party because the emphasis is no compromise.

COOPERATIVE/ SOFT NEGOTIATION
Cooperative negotiators are more interested in developing a relationship based on trust and cooperation. They are therefore more prepared to make concessions on substantive issues in order to preserve that relationship.

ADVANTAGES
1. Sustaining relationships or good long term relationships;
2. A deal or compromise will be reached when there is a deal to be made;
3. From the perspective of a professional negotiator, it is more likely that people will want to deal with you.
4. A compromise is likely to be reached sooner and to work quickly either to agree or disagree.

DISADVANTAGES
1. A good deal may be lost or the opportunity for a good deal may be lost because the negotiator the end of the process may feel that they give more than they should have;
2. There is the possibility of manipulation the other party.
3. The negotiator may be taken advantage of the other party;
4. In the case of a professional negotiator, a cooperative negotiator may not get a very good name e.g. compromises too much which may not be good for business.

In each of these two styles and based on the mentioned disadvantages, the negotiators are more focussed on their respective positions than with their interests and to try and reap the advantages of both the cooperative and competitive bargaining style.

Principled negotiations require negotiators to focus on the interests of each of the disputants with the goal of creating satisfactory options for resolution which may be assessed objective criteria.
Principled negotiation seeks to take advantage of both cooperative and competitive styles and avoid the pitfalls or the disadvantages of the two styles.

MEDIATION
Mediation is a non-binding process in which an impartial third party facilitates the negotiations process between the disputants and it is that impartial third party who is called the mediator. The mediator has no decision making power and the parties maintain the control over the substantive outcome of the mediation.
However, the mediator with the assistance of the parties will control the process and he will with the consent of the parties set and enforce the ground rules for the mediation process. The role of the mediator is not to impose his own solutions and not to even suggest solutions but that the solutions should be suggested and agreed upon the parties themselves.
The mediator should not descend to the arena but should let the disputants decide how to conduct the negotiations.

OMBUDSMAN
An ombudsman is a person who investigates complaints and attempts to assist the disputants to reach a decision. Usually this is an independent officer of the government or a public or quasi-public body. An ombudsman can be classified as an alternative dispute resolution mechanism.
Ombudsmanship is practiced in Sweden. In Kenya we have a Complaints Commission.

EARLY NEUTRAL EVALUATION (ENE)
This is where the parties to the dispute consult a 3rd party with regard to the dispute. The 3rd party then advises them on the likely outcome of the conflict should it be referred either to the Courts or to other formal means of dispute resolution.
Most Advocates usually carry out ENE.
MINI TRIAL
This can either be judicial or private, and is similar to ENE above.
In a Judicial Mini Trial, the parties are already in Court and they go before a Judge. The synopses of their cases are presented and the judge advises on the likely outcome if the matter was to go to trial.

Private Mini Trials mostly occur in large organizations where the members (Senior Managers of the Enterprise) receive a summary of the dispute and essentially suggest ways of resolving them.

EXPERT DETERMINATION
This is where the parties to the dispute appoint a third party who makes a binding decision upon hearing the parties. He must be an expert and makes his decision based on such expertise. His decision is binding.

ADJUDICATION
This is where an adjudicator is appointed to settle disputes. He is appointed as a neutral third party entrusted to take initiative in ascertaining the facts and the law relating to the subject matter in question.
His decision is binding and should be made within a short time. He should also be suitably qualified to deal with the subject matter.

TRADITIONAL/ CUSTOMARY DISPUTE RESOLUTION
Each Community has its own e.g. Njuri Nceke of the Ameru, Abagaka B’egesaku of the Kisii, Kiama of the Kikuyu and Luo Council of Elders for Luo
They are recognized Kenyan Courts just as African Customary Law. The Bomas Draft Constitution recognized them.

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