Alternative Dispute Resolution (ADR) is a concept referring to the modes of conflict resolution other than those associated with courts and tribunals.

In African customary law this concept has existed from time immemorial – indeed formal court system has never existed in Africa.

Village elders had devised ways and means of not only adjudicating disputes but even imparting redress and punishment. In the era of colonialists and even presently chiefs under the Chief’s Act settle disputes informally.

Dispute resolution

In civil jurisdictions, the Constitution provides the conceptional efficacy of dispute resolution and Article 159 (2) (c) states that courts shall be guided by alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

Civil Procedure Act makes several references to ADR and stipulates that courts can refer parties to arbitration or parties can make a formal application to have the matter referred to arbitration or ADR before judgement is pronounced.

Such is the development of ADR that there exists the most modern system known as ODR - Online Dispute Resolution or e- ADR which uses electronic media to assist the resolution of disputes, usually without the parties meeting or speaking directly. ODR involves blind bidding, based on mathematical process or the use of real person who operates as a neutral party over the internet.

Contrast, this world of arbitration if you consider internet on one side and the busaa sipping wazees still solving boundary disputes between neighbours or brothers!

Alternative Dispute Resolution concept, in addition to ODR, has six other accepted methods – arbitration, adjudication, conciliation, early neutral evaluation (ENE), mediation and negotiation.

Arbitration involves an impartial independent and knowledgeable third party, often an expert in the field of dispute, chosen by the disputants, who hears both sides of disagreement. The Arbitration award is binding under the Arbitration Act. Good practice, reasonableness and non-adherence to technicalities and evidential rules expedite the process.

This method is now widely used in matters of building contracts, international disputes, employment rights and customer disputes.

Most agreements now have an arbitration clause and once an arbitration clause is inserted in the agreement the jurisdiction of the courts is excluded. This method of ADR is becoming expensive, slow and cumbersome though there exists in Kenya the Chartered Institute of Arbitrators-Kenya Branch which promotes arbitration.

Adjudication is a binding determination by an appointed neutral third party either by deciding a dispute on basis of submitted documents or after listening to the parties. In some countries statutory adjudication is a mandatory prerequisite, prior to parties jumping to the court process.

This process is often adopted when the contract subsists e.g. the cases of building contracts. Since either party has the option to have the same dispute litigated, adjudication does not necessarily achieve final determination. Due to speed, simplicity and flexibility of the process adjudication is fast taking over the formal arbitration process.

Conciliation and mediation overlap each other in their functions. A conciliator is an independent, impartial third party who promotes dispute resolution by helping parties to come to an amicable decision. Many trade and professional organisations adopt this method. Often the parties in this method do not meet with the neutral third party who works with the warring parties separately to weed out acrimony.

The Early Neutral Evaluation (ENE) has not yet been tested in Kenya. Under this method a third party evaluates the claims made by each side and issues on opinion either on the likely outcome, or on a particular point of law. The opinion, though not binding, can be used by parties when considering how they might proceed with matters in contention. Likewise the opinion can form the basis for settlement.

Realistic outcomes

ENE narrows down the issues, and focuses parties’ minds on realistic outcomes by giving them an objective view of each party’s arguments.

Mediation is a voluntary, guided and informal process whereby a neutral third party meets with disputing parties and it is the most widely used ADR process. Disputes relating to divorce, separation, medical negligence, workplace disputes, community care, education, housing, as well as international and cross-border disputes are often resolved by this method.

Mediation

In contrast, the concept of negotiation involves direct dealing between the parties with parties or their representatives approaching the other side with details of complaints and suggestions of resolving the bone of contention.

Negotiation differs from conciliation, mediation and arbitration in that a third party is acting on behalf of a ‘client’ and advocating for his interests. The negotiator is not impartial and often has the role of advising the client which course of action to follow.

Ombudsmen are often used as impartial referees who adjudicate on complaints about public and private organisations.

Hopefully the role of the Ombudsman under the Commission on Administrative Justice Act will begin to manifest in the Kenyan scene. There is a strong case for Kenyans to be educated in the process and advantages of ADR as courts alone are not and should not be the only avenue for resolving disputes.

The writer is a lawyer. bowryp@hotmail.com