Alternative Dispute Resolution in Kenya
There are several recognised Alternative Dispute Resolution in Kenya (ADR) procedures. Negotiation is the most common, and involves the parties themselves attempting to resolve the dispute. If negotiation is unsuccessful, the other forms that are most commonly used are:
Mediation is a private and structured form of negotiation assisted by a third party that is initially non-binding. If a settlement is reached, the mediator can draw up an agreement that can then become a legally binding contract.
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It is similar to mediation, but the conciliator can propose a solution for the parties to consider before agreement is reached.
This is a private and non-binding technique whereby a third party, usually a judge or somebody legally qualified, gives an opinion on the likely outcome at trial as a basis for settlement discussions.
It is a private process involving an independent expert with inquisitorial powers who gives a binding decision.
Involves the use of an expert to rule on a technical issue and is primarily used in construction disputes as set out in Chartered Institute of Arbitrators (Kenya Branch) Adjudication Rules, where awards are binding on the parties at least on an interim basis. At the end of the interim period other processes, like arbitration, can be used by the parties to achieve full and final settlement.
This probably is the best known form of private dispute resolution. It is a formal and binding process where the dispute is resolved by the decision of a nominated third party, the arbitrator or arbitrators. The most unique characteristic about arbitration is that it is built on the basis of an acceptance and agreement of all the parties in case of any disagreement among them.
Also, arbitration is an informal process which proceeds in a manner conforming to justice, equity and good conscience, unlike courts of law which are put into a straight jacket of fixed procedure and rules of evidence.
Arbitration in Kenya is governed by the Arbitration Act No. 4 of 1995 and the rules made therein, as well as Order 46 of the new Civil Procedure Rules, 2010. The Chartered Institute of Arbitrators Kenya Branch, established in 1984, promotes and facilitates determination of disputes by Arbitration and other forms of Alternative Dispute Resolution (ADR).
The Kenya Branch maintains a strict Continuous Professional Development (CPD) programme. It conducts lunch talks, surgeries, workshops and seminars on relevant topics in the ﬁeld of dispute resolution. To further support the process of Arbitration and ADR, the branch has published the Arbitration and Adjudication Rules. A file on recently decided cases is maintained at the secretariat as part of the reference library under development.