Seeking the ideal strategy for 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.
One particular case is indelibly engraved in my memory. A middle-aged woman sought separation and maintenance. Her cousin footed her bills on account of legal fees and transport. One morning after a pre-hearing briefing as we prepared to leave for court, her husband turned up outside the office block, grabbed hold of her and took off her shoes. She obligingly followed him and went home. I had no option but to seek adjournment of the case and take another date.
At the hearing, she stood beside her husband, who rose to address the court. My heart sunk when his words rang clear in open court: “Your honor, my wife and I have no problem. It is that lawyer who is trying to break our marriage.” The rest is history. I never saw my client again.
Effective Alternatives to Litigation
Were there ways in which that embarrassing incident could have been avoided? Yes, many. Those same ways could have worked for many others, including a client who came to the office to pick her separation and maintenance order, but instead told me: “sir, keep it for me. He came to see me and I decided to give him another chance.” The same would have applied to a series of others that led me to quit litigation in family disputes three years down the line. Since then, mediation and other ADR strategies became my process of choice, even though most disputes were resolved too quickly to yield anything on account of professional fees in comparison to large fee notes raised in litigation, a prospect most legal counsel dread.
Seeking the Ideal
Let us appreciate the fact that the primary goal of an ideal civil justice system is the effective management of conflicts and just resolution of disputes through a fair but swift process at a reasonable expense. It recognizes the fact that delay and excessive expense invariably negates the value of an otherwise just resolution. Similarly, systemic delay and expense common in litigation render the system inaccessible, not to mention breakup in life’s most cherished relationships. Even though there is no absolute measure of a reasonable expense, jurisdictions world over subscribe to the basic principle that the cost of resolving a dispute should be proportional to its magnitude, value, importance and complexity. These are the standards that market mechanisms seek to achieve in order to provide alternatives to civil litigation to the discontent of litigation lawyers.
ADR practitioners and proponents of appropriate market mechanisms find reason in the assertion that it is not enough that the resolution of a dispute is fair. In addition to expedition and cost-effectiveness, two other considerations are vital to quality outcomes. To achieve quality outcomes, a sound balance must be struck between (a)a rights-based approach common in litigation; and (b) an interest-based and need-driven approach common in ADR. While a rights-based approach (characteristic of adversarial judicial systems) strictly upholds the legal rights and obligations of the parties, as do arbitral proceedings, an interest-based and need-driven approach characteristic of negotiation and mediation aims at a just resolution of a dispute that meets the interests and needs of all parties.
In contrast, an adversarial system of dispute resolution is not designed with expedition and cost-effectiveness in mind. To the contrary, it is designed to resolve conflict by a competition of adversaries resulting in broken relationships. It is no wonder that delay, case backlogs and disproportionate costs of litigation are frequently cited as some of the main factors that impede effective resolution of disputes. In addition, the complexity of rules and the intricate architecture of the legal framework limits party control and sets the stage for legal counsel, whose adversarial approach to zealously champion the legal rights and downplay the corresponding obligations of their clients erodes the possibility of promoting and protecting the parties’ common human needs and interests. In the end, extensive advocacy is rewarded regardless of the outcome or value of the case. Accordingly, the judicial system fails on all counts to provide efficient and effective justice.
To appreciate the value of ADR in our dynamic world, one must internalize and subscribe to the words of Chief Justice Warren E. Burger of the US Supreme Court, who, with regard to the primary duty of legal counsel, had this to say:
“The obligation of the legal profession is…to serve as healers of human conflicts…. We should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, with the minimum stress on the participants. That is what justice is all about.”
Granted, not all cases are suitable for mediation or other ADR strategies which, in any event, are voluntary. However, you will all agree with me that court litigation does not heal, but instead exacerbates, conflicts. In effect, legal counsel fail in their ordained duty to heal human conflicts in cases where they needlessly recommend and facilitate litigation. While recognizing the determinative authority of the Judiciary, ADR practitioners draw attention to market mechanisms best suited to facilitate the management of conflicts and resolution of civil disputes (a) expeditiously, i.e., in the shortest possible time; (b) with the least possible expense; and (c) with the minimum stress on the disputants. In the words of Chief Justice Warren E. Burger, “… that is what justice is all about”. Yet, the tendency among our learned fraternity has been to put tradition and financial considerations ahead of quality procedures and quality outcomes that serve to equalize the opportunity to access justice.
Conclusion
The foregoing and other unpleasant experiences eventually led to my quitting litigation altogether ten years ago. Today, I subscribe to the inspiring words of Sandra Day O’Conner (an American Judge), who had this to say:
“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
It is deeply satisfying to mediate in disputes between marriage mates, family members, bankers and clients, insurers and claimants, and see them walk out of the mediation room with big smiles on their face, having reached settlement in their own terms. Their tears of joy spur me on to tell people what my colleagues either do not know or do not wish to disclose to the disputants.
Premier ADR Consultants work hand-in-hand with entrepreneurs and marriage mates with strained business or marital relations on the verge of breakup or separation to resolve their disputes by means of our transformative conflict management and dispute resolution strategies. We help parties salvage, restore and maintain healthy business and family relationships in a safe and peaceful environment with guaranteed privacy and confidentiality.
Our expeditious, cost-effective and party-controlled techniques guarantee consumer satisfaction resulting from the voluntary and jointly generated win-win outcomes. We provide the best alternative to the all-familiar costly, time-consuming, adversarial and often emotive court litigation that only works to weaken and ultimately destroy business, marital and family relations.
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