Presented at the mediation conference at Strathmore University, Nairobi, Kenya on the 25th-27th July, 2018 Conflicts are an integral part of human relations. Their effective management and the resolution of ensuing disputes become critical to the maintenance of social order and the very existence of communal life. It is no wonder that conflict management […]
Hello! Laibuta here. I am delighted to share with you the Proven Formula for fortifying your goodwill and securing healthy Business Relations. Here we are: In This Issue: Introduction: A timely Tip from Dr. Laibuta Article: “The Devastating Effect of Failure to Adopt to Emergent Innovations in Conflict Management and Dispute Resolution”
My first engagement as a legal practitioner in the Kenyan judicial system came with a cocktail of feelings of disappointment, horror and amusement. I served as the legal officer of a legal aid project that offered legal aid services to indigent disputants in criminal law, marital and succession disputes. Despite legal aid, the struggle our clients went through in the judicial system left a lasting impression in my mind. They ranged from those who couldn’t raise the minimal court filing fees to those who couldn’t raise fare to return to their homes or transport their witnesses to and from court. It was not uncommon for my colleagues and I to give handouts to facilitate their return home. But there was a limit as to what we could do.
Arbitration is contractual. Parties agree (in writing) to submit their present or future disputes to an arbitral tribunal (of one or more arbitrators). They agree on the procedure for appointment. Unlike court litigation the parties are free to design the arbitral process to accommodate their respective needs and interests. In recent decades, arbitration has become the preferable procedure for the determination of commercial disputes. Its advantages outweigh court litigation. Yet few are aware of this private, yet legally binding, process whose benefits are unmatched by the conventional judicial process.
Professional mediators and accredited alternative dispute resolution (ADR) practitioners often make the mistake of assuming that the word “mediation” is understandable by consumers of ADR. Yet it is not. Neither do a majority of prospective clients appreciate what mediation entails. What mediation is features as one of the most frequently asked questions I am called to answer in and outside training events and public speaking engagements.
Mediation is a consensual process whereby parties in dispute appoint a third party neutral (who has no interest or stake in the subject matter of the dispute) to facilitate resolution of their dispute on mutually agreed terms. Mediation, which is also commonly referred to as conciliation, is a dynamic, structured, interactive process in which a neutral third party assists disputing parties in resolving a dispute through the use of specialized communication and negotiation techniques. The process is voluntary, confidential, and the mediator/conciliator does not render a decision, but helps the disputants to generate a mutually acceptable outcome.
Alternative dispute resolution mechanisms trace back to the very origin of mankind. Today, the spectrum of dispute resolution mechanisms in Africa is shaped by multiple legal orders, which include (a) informal community-based justice systems; (b) traditional dispute resolution mechanisms; (c) commercial arbitration and ADR (either backed by statute or founded on contractual relations); and (d) the conventional judicial system. It is believed that only a small fraction of disputes escalate and find their way into conventional judicial institutions while most are resolved through a diverse range of ADR mechanisms, which play a critical role in peace-building and maintenance of wholesome family and business relations.