1.3.1 Nature of Alternative Dispute Resolution

• Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation.
• It is a collective term for the ways that parties can settle disputes, with the help of a third party.
• They are a set of techniques used in assisting people in resolving legal issues without going to court.
• In ADR, an independent third party is involved, known as a “neutral,” who tries to help resolve or narrow the areas of conflict.
• Alternative Dispute Resolution refers to a variety of methods other than litigation for resolving conflicts and disputes.
• Alternative dispute resolution (ADR), also known as external dispute resolution (EDR), is a broad term that refers to a variety of dispute resolution processes and techniques that parties can use to resolve disagreements with the assistance of a third party.
• They are used when disputing parties are unable to reach an agreement without resorting to litigation.
• However, ADR is increasingly being used in conjunction with the court system to assist in resolving disputes.
•  Despite historical opposition to ADR on the part of numerous popular parties and their advocates, ADR has gained widespread acceptance in recent years among both the general public and the legal profession.

Advantages of ADR

1. ADR (Alternative Dispute Resolution) is Quick: While adjudicatory methods of dispute resolution take time to determine a case or resolve a legal dispute, non-adjudicatory methods are quick, save time, and avoid the delays and uncertainties of adjudicatory trials.
2. Alternative Dispute Resolution (ADR) is Cost-Effective: This means that ADR is less expensive than litigation because the parties will have to pay fewer fees to have their case decided.
3. It is flexible and adaptive: This is because parties have the freedom to choose the procedural rules that will govern their dispute, and they have the power to control their own destiny rather than allowing an adjudicator to decide their rights. They also have the freedom to choose their arbitrator or mediator.
4. Technical Expertise: In arbitration, the arbitrator is an independent professional with technical knowledge of the matter at hand, as well as experience with the arbitration process. In contrast to the adjudicatory method, where a judge may be unaware of some technical aspects of the case at hand, he will be able to administer justice effectively and efficiently.
5. Alternative Dispute Resolution (ADR) encourages collaboration: By allowing parties to work together with a neutral arbitrator or mediator to resolve a dispute and reach a mutually acceptable resolution.
6. ADR proceedings are confidential: In most cases, the parties agree to keep the outcome of the negotiation or arbitrator hearing private. This is not possible in an adjudicatory method, because most adjudicatory trials and proceedings are open to the general public/press. Because ADR is confidential, they can concentrate on the merits of the dispute instead of worrying about how it will affect the public.
7. Alternative Dispute Resolution (ADR) allows parties to participate: This means that in an alternative dispute resolution, parties are allowed to tell their side of the story, suggest remedies, and even have control over the trial outcome. In a court system, this is not possible.

Disadvantages  of ADR

1. No Guaranteed Dispute Resolution: You can spend your money and time hiring a third party to settle your dispute through Alternative Dispute Resolution (ADR), but there is no guarantee that the third party will resolve the dispute because either of the parties to the dispute may disagree with his final resolution, forcing the dispute to go to court for a hearing.
2. ADR decisions, particularly in reconciliation and mediation proceedings, may not be binding on the parties. The parties have the option of accepting or rejecting the final resolution of the dispute.
3. Alternative Dispute Resolution (ADR) does not allow for the consolidation of actions because ADR is a voluntary agreement between parties, and parties cannot be forced to submit to arbitration, conciliation, mediation, or reconciliation.
4. The Court’s overriding powers apply to some of the decisions reached. For example, where there is an error of law on the face of an arbitral award, the courts have inherent jurisdiction to remit or set aside the award.
5. There is no legal precedent: In ADR, there is no rule of judicial precedent, no adherence to precedent, and no production of precedent because the majority of the proceedings are private and confidential.
6. Alternative Dispute Resolution (ADR) may more often than not protect the legal rights of the parties.

1.3.2 General Principles of ADR Negotiation

When Alternative Dispute Resolution (ADR) is used in contested cases, the following principles must be followed:-

1. Voluntary: In most cases, parties must agree to submit their dispute to mediation or early neutral evaluation before the process can begin. The parties may be required to attend facilitated workshops or settlement conferences, or they may be required to meet with a neutral to explore the feasibility of mediation by an Administrative Law Judge.
2. Timeliness: ADR should be used to shorten rather than prolong the duration of the proceedings. Although it may take longer, the outcome of a negotiated settlement may be more beneficial to everyone involved.
3. Good faith: Those who engage in ADR should do so in an effort to reach agreement, rather than to delay or gain a tactical advantage over their adversary.
4. Maintaining Confidentiality: Most alternative dispute resolution processes require confidentiality in order to explore the parties’ fundamental interests.

5. Impartiality: The Alternative Dispute Resolution practitioners should :-

1. Keep a neutral position when providing alternative dispute resolution services to participants—treat each participant equally.
2. They will maintain an equal level of commitment to the parties and the process, and they will not allow outside pressure or influence to impair their ability to remain impartial.
3. will withdraw from an alternative dispute resolution process if their impartiality has been compromised
4. It is important that our program is kept separate from operational activities in order to maintain its independence from the content of any settlement activities conducted by the parties.

1.3.3 Mediation

• Mediation is a non-binding and confidential process through which people can resolve disagreements with the assistance of a neutral mediator who has been trained to assist them in discussing their differences.
• The mediator does not decide who is correct or incorrect, nor does he or she make a decision.
• Rather than that, the mediator assists the parties in resolving conflicts on their own.
• All participants are encouraged to take an active role in the process.
• Mediation is a “party-centered” process in that it is primarily concerned with the parties’ needs, rights, and interests.
• The mediator employs a variety of techniques to guide the process constructively and to assist the parties in determining their optimal solution.
• A mediator is facilitative in that she/he  manages the interaction between parties and promotes open communication.
• Mediation is also evaluative in the sense that the mediator analyzes issues and instructive guidelines (“reality-testing”), but refrains from providing prescriptive advice to the parties.

Advantages of Mediation

1. It is inexpensive: While a mediator’s fee may be comparable to that of an attorney, the mediation process takes far less time than going through formal legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation can be completed in a matter of weeks or months. In most cases, a resolution is reached in a matter of hours. Less time spent means less money spent on hourly fees and costs.
2. Confidentiality: While court hearings are open to the public, mediation is strictly private. The parties to the dispute, as well as the mediator or mediators, are the only ones who know what happened. The importance of confidentiality in mediation is such that in most cases, a mediator cannot be forced to testify in court about the content or progress of mediation. When a mediation is completed, many mediators destroy the notes they took during the mediation. Child abuse or actual or threatened criminal acts are usually the only exceptions to such strict confidentiality.
3. Maintaining control: Mediation gives the parties more control over the resolution. In a court case, the parties reach an agreement, but the judge or jury retains control. A judge or jury is frequently unable to provide legal solutions that emerge during mediation. As a result, mediation is more likely to produce a solution that is acceptable to both parties.
4. Compliance: Because the parties work together to achieve a mutually agreeable result, compliance with the mediated agreement is usually high. This lowers costs even more because the parties do not need to hire an attorney to enforce the agreement. In a court of law, however, the mediated agreement is fully enforceable.
5. Mutuality: Parties to a mediation are usually willing to work together to find a solution. In most cases, simply agreeing to mediate indicates that both parties are willing to “move” their positions. As a result, the parties are more willing to understand the other’s perspective and work on the dispute’s underlying issues. This has the added benefit of frequently preserving the parties’ relationship prior to the dispute.
6. Support: Mediators have been trained to deal with tense situations. The mediator guides the parties through the process as a neutral facilitator. The mediator assists the parties in thinking “outside the box” for possible dispute resolutions, broadening the range of options.

Disadvantages of Mediation

1. A settlement agreement does not always result from mediation: Parties may invest time and money in mediation only to discover that their case must be resolved by a court. As a result, choosing mediation is a bit of a gamble. Furthermore, if mediation fails, much of a party’s “ammunition” may have been exposed to the opposing party, making the ensuing trial far less useful.
2. Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts: As previously stated, the lack of formality in mediation can be a benefit or a disadvantage. Mediation between parties with varying levels of sophistication and power, as well as varying levels of available resources, may result in an inequitable settlement because the less-well-positioned party is overwhelmed and unprotected.
3. In mediation, no legal precedent can be established: Many discrimination cases, for example, are filed with the goal of not only resolving the case for the named plaintiff, but also of setting a new legal precedent with broader social implications. These cases are only considered “successful” if a high court (usually the US Supreme Court) rules in their favor on the main issue. As a result, mediation is ineffective in such situations.
4. There is no formal discovery process in mediation: There is no way to compel disclosure of information if one of the parties to a dispute cannot fully address the case without first receiving information from the other. The party seeking disclosure must instead rely on the good faith of the other party, which may or may not be sufficient.
5. Most Effective In Financial Disputes: Mediation and other forms of alternative dispute resolution are particularly well suited to financial disputes. Dispute resolution agreements do not resolve conflicts involving emotional differences or criminal cases.

Qualities of the Mediation Process

1. Voluntary: You can leave at any time, for any reason, or for no reason at all.
2. Collaborative: Because no one can impose anything on anyone in mediation, everyone is motivated to work together to solve problems and reach the best possible agreements.
3. Controlled: Each participant has complete decision-making authority and a veto over any mediated agreement’s provisions. There is no way to force you to do something you don’t want to do.
4. Confidential: Mediation is generally confidential, unless you specify otherwise, such as by statute, contract, rules of evidence, or privilege. Except for a finalized and signed mediated agreement, mediation discussions and all materials developed for a mediation are generally inadmissible in any subsequent court or contested proceeding. Your mediator must explain the scope of mediation confidentiality and any exceptions. Any “caucus meetings” (meetings between the mediator and individual parties) should also have their level of confidentiality defined.
5. Informed: The mediation process provides ample opportunity to obtain and incorporate legal and other expert advice and information. Experts can be hired individually or in groups. In mediation, expert opinion is never decisive. The decision-making power is always with the participants. Mediators must encourage parties to seek legal advice and advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel before signing it. It is ultimately up to each mediation participant to decide whether or not to seek legal advice.
6. Impartial, Neutral, Balanced, and Safe: The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor one party over another’s interests, nor should the mediator favor a specific outcome in the mediation. Your mediator is required by law to disclose any substantive bias on the issues under consideration.The mediator’s job is to make sure that parties reach agreements voluntarily and in good faith, rather than through threats or coercion.
7. Self-Responsible and Satisfying: Mediation is found to be more self-responsible and satisfying than court options, because participants have actively participated in voluntarily resolving issues.

1.3.4 Traditional Dispute Resolution Mechanisms

• Traditional mechanisms are developed and formulated as a result of factors such as sociological, chronological, demographic, environmental, and geological factors and interactions.
• Their methods are time-tested and comprehensive approaches to conflict resolution.
• They typically include the processes of:-

1. Conciliation
2. Negotiations
3. Dialogue
4. Mediation
5. Arbitration.

• Traditional dispute resolution mechanisms (TDRM) are now well entrenched in Article 159 of the Constitution of Kenya, 2010 
• They are to be promoted by the courts and tribunals established thereof.
• Prior to the advent of colonialism, communities in Africa, particularly in Kenya, had their own mechanisms for resolving conflict.
• Whenever a conflict arose, the disputants could conduct negotiations.
• In other instances, the Council of Elders or senior men and women may act as neutral third parties to mediate the conflict.
• Additionally, disputants could be reconciled amicably by elders and close family members and counseled on the importance of coexisting harmoniously.
• As such, traditional mechanisms for resolving conflicts were geared toward promoting peaceful coexistence among Africans.
• Globally, the importance of traditional dispute resolution mechanisms in the dispute resolution continuum has been recognized over time, with scholars stating that courts only deal with a fraction of the total number of disputes that occur in society as a result of this.
• In many cases, disputes are resolved without the involvement of the courts and through informal negotiations between the parties involved in the dispute.

1.3.5 Arbitration

• This is a method of resolving civil disputes outside of court through arbitral tribunals that issue arbitral awards rather than judgments.
• In Kenya, arbitration is governed by the Arbitration Act2.
• According to the Act, an arbitration agreement is an agreement between parties to submit all or a portion of their disputes to arbitration.
• Natural Justice Principles in Relation to Arbitration Proceedings are fundamental requirement of justice in resolving a dispute between two or more parties is the application of natural justice principles.
• To begin, the arbitrator or tribunal must be and appear to be disinterested and objective.
• Second, each party must be given an equal opportunity to present his or her case and to respond to the opposing party’s case.
• The first principle is articulated in Section 13 of the Arbitration Act, which requires applicants for appointment as arbitrators to disclose any circumstances that could reasonably raise doubts about their impartiality or independence.
• This is a continuing obligation on the part of the arbitrator from the time he is approached until he accepts appointment, conducts the reference, and renders his award.

Usually, arbitrators may be appointed by:-

1. The parties to the dispute
2. A third party as agreed to by the parties
3. The High Court on application

Powers of the Arbitrator

The arbitrator’s powers include:-

1. Determining whether it has jurisdiction to hear the dispute.
2. To provide temporary relief or remedies as needed.
3. To demand security from either party
4. To decide whether evidence is sufficient
5. To administer oaths
6. To question people under oath.

Duties of the Arbitrator

1. To be unbiased and impartial
2. To schedule an arbitration hearing at a time and location that is mutually convenient for the parties.
3. Duty to inform
4. Duty to resolve the dispute quickly and effectively
5. Duty to establish the  rules for the procedure

Advantages of Arbitration.

1. Efficient and Flexible: Quicker resolution, easier scheduling. Disputes are usually resolved much faster. A court trial can take years, whereas an arbitration hearing can be scheduled in a matter of months. Court calendars are usually backlogged with hundreds if not thousands of cases. Conversely, arbitration hearings can be scheduled according to the parties’ and arbitrator’s availability.
2. Less Complicated: Simplified evidence and procedure rules. Litigation requires a lot of paperwork, motions, and court appearances. The rules of evidence in arbitration are not as strict as in court, making it easier to admit evidence. Arbitration may reduce the need for time-consuming and costly discovery procedures like interrogatories, depositions, and document requests. Most issues, such as who will be called as a witness and what documents must be produced, are handled over the phone.
3. Privacy: Unlike a trial, arbitration results in a private resolution, keeping the details of the dispute and resolution private. Because all evidence, statements, and arguments will be kept confidential, this may be appealing to famous people or business clients. In court, however, even if certain records are not released, the public may still have access to potentially sensitive business information.
4. Impartiality: Choosing the “judge”, Parties to a dispute usually choose the arbitrator together, so both parties trust the arbitrator will be impartial.
5. Usually cheaper: Arbitration is usually, but not always, less expensive than litigation. Arbitration often resolves faster than court proceedings, reducing attorney fees. Preparing for arbitration is also less expensive than preparing for a jury trial.
6. Finality: The end of the dispute, Appeals for binding arbitration are limited. Arbitration has a finality that a trial decision does not, which can lead to appeals, new trials, and more appeals.

Disadvantages  of Arbitration.

1. No Appeals: Generally, the arbitrator’s decision cannot be appealed. A district court will only review an arbitrator’s decision if there is evidence of corruption, fraud, or undue influence. This is concerning because an arbitrator has more discretion and decision-making power than a judge or jury. The binding nature of the decision and the general inability to appeal an incorrect decision magnify the consequences of the arbitration.
2. Lack of Formal Discovery: While not having a full formal discovery process can save money, it can also leave the parties (or one party in particular) without all the information they need to evaluate the case. So a party can present its case to an arbitrator without knowing all the relevant facts that could have been revealed through formal discovery like interrogatories, production requests, and depositions.
3. Discretion of the Arbitrator: An arbitrator may make a decision without expressing an opinion in writing. Furthermore, because arbitrations are private and rarely reviewed by courts, the lack of transparency in decision-making may allow for bias.
4. Rising Costs: Although arbitration is typically less expensive than litigation, its costs are rising, making it more expensive than other ADR procedures.
5. Lack of Consistency: There is a lack of consistency in arbitration because there are no established standards, making it difficult to achieve consistency. The possibility of an arbitrator being biased exists, and it has been observed that this is sometimes the case in mandatory arbitration contracts.
6. Absence of Evidence: Because arbitration is not based on evidence, you must rely on the experience of the arbitrator to make the best legal decision possible in your case.