Disputes are as old as the human race and are a common feature of social and legal relations between individuals, corporate and state parties both at domestic and international levels. They call for the establishment of elaborate systems of dispute resolution to accommodate the increasing need for expedition and the desire to resolve them at minimal cost. To this end, we now see innovative international protocols, treaties and domestic legislation designed to offer invaluable alternatives to conventional judicial systems whose adversarial scales of justice often do not tip to the advantage of the litigants taking account of the expense in time and money weighed against the benefits.
Basic treaty and legislative instruments, such as the Geneva Protocol on Arbitration Clauses (1923), the United Nations Commission on International Trade Law (1985), the New York Convention on the Enforcement of Foreign Awards (1958), domestic legislation (such as the Arbitration Act of 1995) and institutional rules, only to mention a few, have spurred the establishment of various institutions and promulgation of procedural rules to facilitate enforcement of rights and awards in commercial and other matters capable of settlement by arbitration without undue delay and expense. But why mediate or arbitrate?
When is Mediation or Arbitration Appropriate?
Save in non-arbitrable disputes or disputes where either of the parties anticipates legal aid, parties in difference can chose whether to litigate or to adopt alternative methods of dispute resolution such as mediation or arbitration. A choice to mediate presupposes desire by the parties to maintain their relationship in spite of the dispute. The process is consensual and accommodates mutual interests without undue regard to legal technicalities or strict enforcement of legal rights as sought in litigation.
The parties determine and contribute to the means and the end result of mediation from which they emerge as winners. Their mutual commitment to agreement and constructive interaction ensures joint control over the outcome of the dispute. The resolution on mutually agreeable terms may be reduced into a formal agreement enforceable by either party in subsequent arbitral or judicial proceedings in the event of breach depending on whether the process is binding.
What Are the Benefits of ADR?
Fair resolution of disputes by impartial arbitral tribunals is now attainable without undue delay and expense due to the enabling environment directly attributable to supportive legislation and institutional rules, which govern procedure in domestic and international arbitration. International commerce and the building industry in Kenya have for a long time enjoyed this cost-effective and expeditious means of dispute resolution whose benefits can be extended to other areas such as business, employment and marital disputes only to mention a few. Other jurisdictions, such as the United Kingdom and the United States of America enjoy the priceless benefits of the various means of alternative dispute resolution (ADR) in almost all social and economic sectors including consumer complaints, malpractice claims, labour and trade disputes, local business and international commercial disputes.
Subject only to such safeguards as are necessary in the public interest, parties to a reference are free to agree on the rules of law and procedure by which they wish to have their proceedings governed. Party autonomy extends to the right to exclude application of strict rules of evidence. Likewise, the right of appeal on a question of law may be excluded by agreement to ensure finality of an award and stem costly and time-consuming vexatious reviews and appeal processes common in judicial proceedings. They may jointly appoint and determine the composition of the arbitral tribunal or, otherwise, agree on the manner of its appointment, powers, qualifications and experience, a luxury unknown to litigants in judicial proceedings. They are also free to agree on procedure, venue and duration of proceedings to avoid inflation of costs and may empower the tribunal to decide on procedural and evidential matters. Proceedings are private and may be so informal as to exclude oral testimonies. Courts may only be moved to support the reference or to enforce orders and awards or, in rare cases, to remove an arbitrator for serious irregularity, want of impartiality or diligence. Any judicial intervention is restricted to those supportive motions permissible by the Act or agreement of the parties, and intended to enforce their rights.
We are not far from the attainment of these ideals on a larger scale. The Chartered Institute of Arbitrators (of the United Kingdom) set up in 1915 established a branch in Kenya in 1984. The local institute, which has 194 members spearheads a diligent awareness campaign while developing a series of training seminars, workshops and other professional development programmes for its members whose numbers are steadily on the rise. Currently, the local branch has 26 chartered arbitrators, 52 fellows (of the Chartered Institute of Arbitrators U.K.), 378 full members, and 408 associate members. The drive for a wider scope of professional membership could not have come at a better time when the local judicial system has come under increasing scrutiny. Prolonged unresolved disputes have transformed litigation into an unbearable burden. Local solutions shaped by the parties themselves have become more necessary than ever before. The court-mandated mediation scheme piloted by the Judiciary could not have come at a better time.
Mediation and arbitration offer the much needed expeditious and cost-effective means of dispute resolution. Legal practitioners are being brought into the fold in greater numbers than was the case in the past when architects, engineers, surveyors and building economists dominated the field.
How Does the Institutional Framework Look Like?
The Chartered Institute of Arbitrators (Kenya Branch) offers advisory services on the appointment of mediators and arbitrators from its current membership for both domestic and international disputes. It may also interest you to inquire into any of its training programmes and calendar of events. The secretariate will be more than happy to give more information and services at your request. Other institutions of interest are the Nairobi Centre for International Arbitration and the Strathmore Dispute Resolution Centre with which we closely associate.
Who are Premier ADR Consultants, and What Do They Do?
Premier ADR Consultants are a firm of law attorneys, legislative counsel, chartered arbitrators and mediators.
We resolve the following types of disputes:
- Commercial disputes
- Workplace disputes
- Marital disputes
- Inheritance and succession claims
Our dispute resolution strategies include:
- Commercial arbitration
- Claim adjudication
- Commercial Mediation
- Workplace mediation
- Family Mediation
Contact us: Email [email protected]
Tel: +254(0)722521708