Mediation is steadily picking pace and is gradually becoming the conflict management and dispute resolution method of choice. However, the majority of Kenyans are yet to appreciate the nature and form of this alternative dispute resolution mechanism. It is not uncommon to hear people likening mediation to negotiation and arbitration to mediation. But that is […]
Marriage may be likened to an adventurous journey without a destination in view. Those walking this path learn to live through intermittent moments of joy and gloom. With time, they come face to face with the reality that a happy marriage does not just happen. It results from concerted effort and determination to build an
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.
Article 159(2) (c) of the Constitution provides firm foundation for ADR by mandating courts and national tribunals to promote “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism”, the Constitution contemplates submission to such ADR mechanisms in the context of judicial proceedings in exercise of judicial authority vested in the Judiciary. However, in their bid to promote ADR, courts are required by sub-article (3) to guarantee the protection of fundamental human rights and freedoms guaranteed under the Constitution.
The question as to the suitability of ADR in statutory crimes and crimes against the State is largely dependent on our societal values that shape our conception of justice. The extent to which our society is prepared to apply ADR mechanisms in criminal law is dictated by our conventional approach to sanctions in criminal law, which is in turn informed by our conceptions of justice – the choices we make as between redressive, restorative, distributive, preventive, corrective and retributive justice.
ADR in Statutory Crimes and Crimes Against the State Read More »
My paper titled “The Place of ADR in Intergovernmental Disputes” published online last week was one of the subject of discussion at the momentous meeting between the Senate and members of the Chartered Institute of Arbitrators (Kenya Branch) on 14th June 2018. At the meeting, members of the Institute urged the legislators to consider alternative dispute resolution as a critical feature of legislation in which dispute resolution is contemplated. The Institute highlighted the glaring gap in legislative instruments with regard to the pressing need to incorporate ADR mechanisms and recognize the role of such institutions as the Chartered Institute of Arbitrators…
Expanding the Legal Framework for the Resolution of Intergovernmental Disputes Read More »
1. Introduction The Constitution of Kenya, 2010 establishes a devolved system of government comprised of the national and forty-seven county governments. According to article 6(2) of the Constitution, The governments at the national and county levels are distinct and inter-dependent. They are mandated to conduct their mutual relations on the basis of consultation and
When most people, including corporations, invest capital in a business venture, their focus is almost invariably on the prospect of profitable returns, returns and returns. Hardly will you ever hear investors mention goodwill and healthy business relationships in their priority list. Yet these are the most valuable assets in any business undertaking. Loss of goodwill
Five Mistakes Entrepreneurs Make and How to Avoid Them Read More »
The debate as to whether court-mandated mediation offends the right of access to justice by litigation is never-ending; at least not soon. The reality of the matter, though, is that it is inoffensive, and works to the best interest of the parties. Besides being party-controlled, it is efficient, expeditious and cost-effective. I believe that the Italian model discussed in the article below helps to rest the unnecessary debate that emerges merely as academic and intended to leave legal counsel in control of the judicial process where the money is. But how about the real interests of their clients? Does it really matter? Maybe, maybe not. At least not where the profession is concerned. So what is paramount: the elegance of legal practice in litigation or the real benefits of dispute resolution? Decide for yourselves.
Has it ever occurred to you that money-lending and debt recovery reveal the two faces of a financial institution? While a banker is more than eager to lend money with a big smile on their face, the process of debt recovery from a defaulting borrower and the conventional method of enforcing the security can be
Three Fatal Mistakes Bankers Make in Debt Recovery Read More »
