KENYA LAWS ONLINE: Alternative Dispute Resolution

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Alternative Dispute Resolution Law in Kenya

Kenya ADR Law: What is Mediation?

Mediation is another of the methods of alternative dispute resolution (ADR) available to parties. Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which is a process of ADR somewhat similar to trial, mediation doesn't involve decision making by the neutral third party. ADR procedures can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms.

Mediation Is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guidethe process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that she/he manages the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties (e.g.,"You should do... .").Mediation, as used in law, is a form ofalternative dispute resolution(ADR), a way of resolving disputes between two or morepartieswith concrete effects. Typically, a third party, the mediator, assists the parties tonegotiatea settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.The term "mediation" broadly refers to anyinstance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process. Mediation is becoming a more peaceful and internationally accepted solution in order to end conflict. Mediation can be used to resolve disputesof any magnitude.The term "mediation", however, due to language as well as national legal standards and regulations is not identical in content in all countries but rather has specific connotations and there are quite some differences between Anglo-Saxon definitions and other countries, especially countries with a civil, statutory law tradition like Germany or Austria.[1][2]Mediators use various techniques to open, or improve,dialogueandempathybetween disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity,training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.

Kenya ADR Law: When may mediation be inappropriate?

Mediation may not be effective if one of the parties is unwilling to cooperate. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. For example, mediation may not be a good choiceif the parties have a history of abuseor victimization.Some cases may also present unique issues that would require theCourt to determine the outcome or resolution.

Kenya ADR Law : Advantages and Disadvantages of Alternative Dispute Resolution

ADR has several advantages over litigation:
*.Suitable for multi-party disputes
*.Lower costs
*.Likelihood and speed of settlements
*.Flexibility of process
*.Parties' control of process
*.Parties' choice of forum
*.Practical solutions
*.Wider range of issues can be considered
*.Shared future interests may be protected
*.Confidentiality
*.Risk management

However, ADR less suitable than litigation when there is:
*.A need for precedent
*.A need for court orders
*.A need for interim orders
*.A need for evidential rules
*.A need for enforcement
*.Power imbalance between parties
*.Quasi-criminal allegations
*.Complexity in the case

Kenya ADR Law :Main benefits of conciliation

*.Conciliation ensures party autonomy.The parties can choose the timing, language, place, structure and content of the conciliation proceedings.
*.Conciliation ensures the expertise of thedecision maker.The parties are free to select their conciliator. A conciliator does not have to have a specific professional background. The parties may base their selection on criteria such as; experience,professional and / or personal expertise,availability, language and cultural skills. A conciliator should be impartial and independent.
*.Conciliation is time and cost efficient.Due to the informal and flexible nature of conciliation proceedings, they can be conducted in a time and cost-efficient manner.
*.Conciliation ensures confidentiality.The parties usually agree on confidentiality. Thus, disputes can be settled discretely and business secrets will remain confidential.

Kenya ADR Law :What is conciliation?

Conciliation is an alternative out-of-court dispute resolution instrument.Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party.The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal.Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and / or personal interests.Like in mediation proceedings, the ultimate decision to agree on the settlement remains with the parties.

Kenya ADR Law : Conciliation

Conciliation is an alternative dispute resolution(ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome.Conciliation differs from arbitration that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.Conciliation differs from mediation in that in conciliation, often the parties are in need of restoring or repairing a relationship, either personal or business.

Conciliation TechniqueA conciliator assists each of the parties to independently develop a list of all of their objectives (the outcomes which they desire to obtain from the conciliation). The conciliator then has each of the parties separately prioritize their own list from most to least important. He/She then goes back and forth between the parties and encourages them to "give" on the objectives one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not listed by the other party. Thus the conciliator can quickly build a string of successes and help the parties create an atmosphere of trust which the conciliator can continue to develop.Most successful conciliators are highly skilled negotiators. Some conciliators operate under the auspices of any one of several non-governmental entities, and forgovernmental agencies.

Kenya ADR Law: Mediation is applicable to disputes in many areas

Family
*.Prenuptial/Premarital agreements
*.Financial or budget disagreements
*.Separation
*.Divorce
*.Alimony
*.Parenting plans (child custody and visitation)
*.Elder Care
*.Family Businesses
*.Adult sibling conflicts
*.Parent(s)/adult children
*.Estates
*.Medical ethicsand end-of-Life Workplace
*.Wrongful termination*.Workers' compensation
*.Discrimination
*.Harassment
*.Grievances
*.Labor Management Commercial
*.Landlord/tenant
*.Homeowners' associations
*.Builders/contractors/realtors/homeowners
*.Contracts
*.Medical malpractice
*.Personal injury
*.Partnerships Public disputes
*.Environmental
*.Land-Use Other.
*.School conflicts
*.Violence-prevention
*.Victim-Offender mediation
*.Non-profit organisation
*.Faith communities

Kenya ADR Law : Types of Alternative Dispute Resolution

Alternative Dispute Resolution(ADR) has become an increasingly popular method of resolving disputes. As an alternative to litigation, ADR processes are typically less formal, more cost-effective, and are able to reach a settlement sooner than a civil trial. Kenyan Lawyers are skilled at facilitating alternative dispute resolution, such as the three methods listed below, to achieve a win-win solution.

1. Mediation
In mediation , an impartial individual called the “mediator” is brought to help the parties involved in disputescollaboratively brainstorm resolutions that are mutually acceptable. In the end, the parties, not the mediator, have control over the outcome of themediationproceedings.The mediator’s main role is to help the parties effectively communicate with each other by eliminating hostility and the emotions that are obstructing resolution. The decision made bymediationis usually non-binding and leads to further negotiations.
2. Arbitration
Arbitrations less formal than a trial, but it still utilizes arguments and a hearing. In an arbitration hearing, both parties present their arguments and evidence to a neutral third party called the “arbitrator.” After hearing both sides of the dispute, the arbitrator, not the parties, gets to decide the outcome.Arbitrationcan be binding or non-binding. Non-binding arbitration means both parties can go to court if they are unsatisfied with the arbitrator’s decision. On the other hand, binding arbitration typically means the arbitrator’s decision is final and both parties waive their right to appeal.
3. Early Neutral Resolution
In Early neutral resolution, the “evaluator” serves as the impartial and credible third party overseeing thealternative dispute resolutionproceedings. After hearing arguments and analyzing evidence from both sides, the evaluator makes a judgement of the business dispute. The evaluator gives a non-binding opinion on the strengths and weaknesses of each party’s arguments, possible resolutions, as well as each side’s likelihood of winning if the case is brought to trial. If the parties decide against going to court, this opinion is used as a basis for further negotiations.In addition to the alternative dispute resolution processes mentioned above,there are many other types of ADR available to those looking to resolve business disputes as well as a wide range of other legal disputes.

Negotiation
In Negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" –, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:
*.Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of theirrespective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
*.Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
*.Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
*.Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents.Anorganizational ombudsman works within the institution to look into complaints independently and impartially.

Kenya ADR Law: What is the role of the mediator?

The mediator is a neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the partiesin exploring settlement options. Generally, the mediator does not communicate with the court except to file aStatement of Agreement/Non-Agreementat the conclusion of mediation.

Kenya ADR Law : Who must attend the mediation?

All parties, their counsel (if the parties are represented,) and persons with full authority to settle the case must personally attend the mediation, unless excused by the court or mediator for good cause

Kenya ADR Law : When is mediation appropriate?

Mediation may be particularly usefulwhen parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties and help them communicate with each other in a constructive manner.When cases are resolved through mediation, the parties may save money that they would have spent on attorney’s fees, court costs, and experts’ fees, which can total thousands of shillings .

Kenya ADR Law : Considerations When Hiring an Alternative Dispute Resolution Attorney

Even though Alternative Dispute Resolution is intended to reduce the costs, stress, and formality associated with going to court, many parties still hire attorneys to represent them at ADR proceedings. They also seek out pre-proceeding consultations about possible solutions or strategies. Just as with any legal dispute, you should hire an attorney with experience in your particular legal issue who also is familiar with the collaborative process of ADR.Additionally, arbitrators and mediators are often lawyers. Rather than hiring a lawyer to represent each party in an ADR proceeding, some parties agree to hire a single lawyer to act as an impartial third party to guide the resolution and ensure that all solution proposals are legal.

Kenya ADR Law: What is Alternative Dispute Resolution?

Definition of Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation, such as arbitration, mediation, or negotiation. ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that would otherwise result in litigation, including high-profile labor disputes, divorce actions, and personal injury claims.One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR procedures are often collaborative and allow the parties to understand each other's positions. ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.

Terms to Know
*.Arbitration- A process similar to an informal trial where an impartial third party hears each side of a dispute and issues a decision; the parties may agree tohave the decision be binding or non-binding
*.Bindingand Non-Binding - A binding decision is a ruling that the parties must abide be whether or not they agree with it; a non-binding decision is a ruling that the parties may choose to ignore
*.Arbitrator- An impartial person given the power to resolve a dispute by hearing each side and coming to decision
*.Hearing- A proceeding in which evidence and arguments are presented, usually to a decision maker who will issue ruling
*.Mediation- A collaborative process where a mediator works with the parties to come to a mutually agreeable solution; mediation is usually non-binding

Alternative Dispute Resolution in Kenya: Remuneration of the arbitrator

The fees of arbitration should be proportionate to the substance of the case.

The parties, tribunals or institutions should look for and encourage the use of fee structures that encourage speed and efficiency.

THE EXPRESS CONTRACT FOR REMUNERATION

It is highly desirable in an ad hoc arbitration that an arbitrator who regards remuneration as important should make an express agreement in writing with the parties as to his remuneration. Ideally, this should be done before he accepts the appointment. But in many cases he knows very little about either the sums in issue or the magnitude of the task involved. So in practice he often accepts the appointment and leaves the subject of fees to be dealt with at or shortly after the preliminary meeting. In doing so, he takes a risk. Having accepted the appointment he is not entitled to insist on specific arrangements and can only ask for them. If one of the parties is difficult, then his only option is to go on without more or to resign forthwith. Of course in that event, he may have to repay any fees that he has managed to secure.

In many cases, the fee or basis of remuneration is expressly agreed before or immediately upon appointment so that the question of what right of remuneration is implied does not arise. Many arbitrators now include for interim payments in their terms, which is likely to bring unhappiness on the part of the parties about the costs of the tribunal to the surface at an early stage.

PAYMENT THROUGH AN INSTITUTION

In arbitrations administered by some institutions, the tribunal’s fees are channelled through the institution, thus to a considerable degree insulating the tribunal from the concerns of the parties about the tribunal costs. And the institutions are usually safe from much in the way of complaint, since they will have established some basis for paying the tribunal in advance.

THE LIEN

The practice of requiring payment before issue of the award may reduce the enthusiasm of a party for a dispute about fees, which are anyway likely to be one of the smaller bills that the arbitration will generate. While there is a mechanism for dealing with this problem, it involves a trip to court and thus yet further fees.

The 1996 Act has now addressed Under S. 28, the express contractual position (which is the most usual arrangement) is preserved. Absent of an agreement, the parties are jointly and severally liable for “such reasonable fees and expenses (if any) as are appropriate in the circumstances. The concept of such reasonable fees and expenses as are appropriate in the circumstances is picked up when it comes to payment of the costs of the arbitration. Section 64 defines the costs(for purposes of payment as between the parties) as including only such reasonable fees and expenses of the arbitrators as are appropriate in the circumstances. Thus what the arbitrators can recover from the parties, in a situation where there was no express agreement between the parties and the arbitrators, should match exactly what is recoverable between the parties when the final word on costs is known.

Where there is an agreement between the arbitrators and the parties, the inevitability of a match is lost. If the difference proves to be substantial, with the contractual rates at the high end, an arbitrator may find difficulty in obtaining payment, if he has not been paid in advance.

Section 32 (5) there is power on the part of the tribunal to order as to who becomes responsible for costs.

Alternative Dispute Resolution in Kenya: Powers of the Arbitrator

The principal source of the powers of an arbitral tribunal under Kenya law is the arbitration agreement itself and therefore the mandate of the tribunal stems from the agreement of the parties.

The arbitration agreement under Kenya law may confer powers on the arbitral tribunal expressly for instance if the arbitration agreement itself stipulates expressly that the tribunal or the arbitrator will have power to give an interim or provisional relief. If the arbitration agreement provides that the Arbitration Act will apply then the extensive powers given under that Act again will be available to the Arbitrator.

The powers are stemming from the Agreement of the parties. The parties are the ones conferring the powers on the arbitrator through the arbitration agreement i.e. powers to determine procedure, powers to determine the venue, power to give the award, power to rule on jurisdiction.

If the agreement incorporates the rules of an institution for instance the arbitration rules of the chartered institute of arbitrators again the powers that are conferred under those rules would be available to the tribunal.

Under Clause 16 of Chartered Institute of Arbitrators Rules, the tribunal has jurisdiction to determine the extent, validity or existence of an agreement which is essentially an adoption of Section 17 of the Arbitration Act. There is power under that clause to allow an amendment of the arbitration agreement itself. If for instance the arbitration agreement has an error, tribunal has power to rectify such error. Under the same clause there is power to decide on questions of law. there are powers to decide on question of dishonesty, fraud or bad faith arising in the dispute, there is power to order parties to furnish further details of claims, there is power to make an order for conservation of property, power to order parties to make interim payments towards the cost of arbitration. Power to order payment of interest etc.

To a large extent the rules summarises the powers found in the Arbitration Act but the overriding principle is that the tribunal has those powers conferred on it by the parties.

Alternative Dispute Resolution in Kenya: Mediation

Mediation is a non-binding process in which an impartial third party facilitates the negotiations process between the disputants and it is that impartial third party who is called the mediator. The mediator has no decision making power, he has no decision making power and the parties maintain the control over the substantive outcome of the mediation.

However, the mediator with the assistance of the parties will control the process and he will with the consent of the parties set and enforce the ground rules for the mediation process. If in the dispute the two examples that we have looked at we now bring in a third party as the mediator, he will probably get an overview from both parties as to what their contentions are. He will then agree with the parties that each party will be given an opportunity to state their case, they could also agree that when one party is stating their case, the other party shall not interrupt. The role of the mediator is not to impose his own solutions and not to even suggest solutions but that the solutions should be suggested and agreed upon by the parties themselves.

Story telling - the disputants communicate with the mediator to tell their story. The mediator then assures them that he has heard the story by re stating what each party has told you and letting them state whether those are the facts as they have stated them. You re narrate the story. You may then ask them to suggest the way forward and both parties can state how they want to proceed. Lay down the rules.

The mediator should not descend to the arena but should let the disputants decide how to conduct the negotiations.

ARBITRATION AND MEDIATION

Arbitration is a process in which a third party neutral, or an odd number panel of neutrals render a decision based on the merits of the case. The Hybrid of mediation or the hybrid between mediation and arbitration which is a very rare sort of scenario is that the third party neutral commences the process in the role of a mediator and if that does not yield or result in a resolutions the mediation ceases and the mediator assumes or becomes an arbitrator who then makes a binding decision. In the arbitration mediation hybrid (arbmed) the disputants present their respective cases to the third party neutral who prepares or makes a decision, he does not however share that decision or release that decision to the parties but he keeps it away and then assumes the role of a mediator. If a result of the mediation, the parties reach a resolution, he destroys his decision but if the mediation does not resolve in a resolution then he releases his decision to the parties.

Alternative Dispute Resolution in Kenya: An Introduction

Alternative Dispute Resolution refers to processes for resolving disputes other than litigation. The distinction between the various types of dispute resolution processes, they can be arranged from the perspective of the level of control the disputants have over the process the more formal they get the less control the parties have.

1. Dispute Prevention

2. Negotiation

3. Mediation;

4. Hybrid between mediation and arbitration (Medarb)

5. Hybrid between arbitration and mediation (Arbmed)

6. Arbitration

7. Litigation or the trial itself.

There are other mechanisms or processes that exist; there are many trials and early neutral evaluations. As we examine these processes the following features emerge

a. The more formal the process, the higher the level of involvement by a third party in the process. Parties do not have a say in the process itself but they are bound by rules of procedure which they have to follow so compared to other processes like arbitration the element of party participation in arbitration is higher because the parties are at liberty to decide which rules of procedure to apply or the venue etc.

b. As you approach the more formal processes like litigation, the process is increasingly formal from the dress that the parties wear, i.e. wigs an gowns in litigation or judicial process, manner of address, references to magistrates and Judges as my lord and your honour, the requirement as to pleadings and the format that they have to meet etc,

c. The more formal the process, the more the danger or likelihood of potentially damaging the relationship between the disputants. The decision that is reached after the result of a trial is an imposed decision and carries consequences for not complying with it. Secondly the parties have not voluntarily submitted to that process. For example in a matrimonial dispute where a husband is forced to pay alimony to the wife, that kind of decision cannot endear the parties to each other, the more formal it is the likelihood of destroying the relationships.

d. Arguably the more the formal the processes the more expensive it is, arguably because arbitration can be expensive as well, getting the disputes through the process is very expensive in terms of court fees, lawyers fees etc.

The standard practice in arbitration is that the arbitrator is paid on an hourly basis that is not to say that the arbitrator is not at liberty to value his services with that value of the dispute, he is at liberty to adopt a method of charging that best suits him.

e. The process of litigation tends to take longer. From commencement to the stage of the dispute resolution the amount of time taken is a lot longer. Rules of procedure in litigation are rigid and they tend to make a case to last longer than it should. There is also the backlog and the volume of work that the judiciary have to go through, it’s a lot.

f. Finally the more formal the structure is, the higher the focus on the disputants’ rights as opposed to their interests. The distinction between interests and rights is that interests of parties are usually in having a continuous relationship and when parties litigate their interests are destroyed by virtue of enforcing their legal rights.

DISPUTE PREVENTION

One mechanism for preventing disputes is by providing dispute resolution training. Training that provides people with skills to prevent unnecessary disputes. If you take a typical case of a husband and wife, how would training come in to prevent disputes arising? Training maybe in better communication skills.

Second method of dispute resolution is partnering. This requires disputants involved in a project to meet to discuss how to resolve any conflict which may arise. If for instance there is a building contract that involves, employer, QS engineer building contractor etc. these people can meet at their own set of this project and decide that should conflict arise we will deal with it in this fashion that is partnering. They can agree for instance that the decision of the architect will be the final decision.

The other form of dispute prevention is systems design which involves determining in advance what process would be used for handling conflicts which arise.

Alternative Dispute Resolution in Kenya: Negotiation

Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution. In a negotiation the disputants may represent themselves or they may be represented by agents and whatever the case, whether they are represented or not represented, they have control over the negotiation process. When attempts are made to settle matters out of court involves negotiations

There are two extreme styles of negotiating. there is what is referred to as the competitive bargaining style and co-operative bargaining style or hard bargaining and soft negotiating.

The competitive negotiators are so concerned with the substantive results that they advocate extreme positions. They create false issues, they mislead the other negotiator, they even bluff to gain advantage. It is rare that they make concessions and if they do, they do so arguably, they may even intimidate the other negotiator.

Cooperative negotiators are more interested in developing a relationship based on trust and cooperation they are therefore more prepared to make concessions on substantive issues in order to preserve that relationship.

Is negotiation a dispute resolution mechanism that can be applied in all kinds of situations? Are there disputes that will not be necessarily resolved by negotiations? There are certain disputes that negotiations would not perhaps assist.

In as far as hard bargaining is concerned, the perceived advantages would be

1. The hard negotiator is likely to get a better substantive especially in circumstances where such a negotiator is negotiating with a co-operative negotiator;

2. If a negotiator is a professional negotiator i.e. one who is called upon to negotiate on behalf of parties, he is likely to develop a reputation which will be useful in future negotiations;

3. The competitive negotiator is not open to easy manipulation;

4. A negotiator of that style is also likely to take initiative and to take a lead role in negotiations;

Disadvantages

1. The solution that comes out of such hard negotiations is likely to be a fragile one and therefore not long lasting so the other party is likely to come out of the negotiations feeling like maybe they gave too much and this may create ill feelings;

2. The competitive or hard negotiator may by reason of his approach fail to take an opportunity to reach a good deal because of the attitude that he must have his way and a good deal may be put on the table which he does not look at as he does not want to compromise.bbb

3. It may harm the relationship; it may also create misunderstanding by the fact that the interests of the party maybe compromised.

4. The competitive bargainer or negotiator is unlikely to be aligned to the concerns of the other party because the emphasis is no compromise.

SOFT NEGOTIATING STYLE

ADVANTAGES

1. Sustaining relationships or good long term relationships;

2. A deal or compromise will be reached when there is a deal to be made;

3. From the perspective of a professional negotiator, it is more likely that people will want to deal with you.

4. A compromise is likely to be reached sooner and to work quickly either to agree or disagree.

DISADVANTAGES

1. A good deal may be lost or the opportunity for a good deal may be lost because the negotiator by the end of the process may feel that they give more than they should have;

2. There is the possibility of manipulation by the other party.

3. The negotiator may be taken advantage of by the other party;

4. The party may want to get out of the deal later so he may feel sorry and try to get out of the deal.

5. In the case of a professional negotiator, a cooperative negotiator may not get a very good name e.g. compromises too much which may not be good for business.

In each of these two styles and based on the mentioned disadvantages, the negotiators are more focussed on their respective positions than with their interests and to try and reap the advantages of both the cooperative and competitive bargaining style, Roger Fisher and William Ury came up with a project at Harvard Law School and developed what they referred to as principled negotiations.

Principled negotiations require negotiators to focus on the interests of each of the disputants with the goal of creating satisfactory options for resolution which may be assessed by objective criteria.

Principled negotiation seeks to take advantage of both cooperative and competitive styles and avoid the pitfalls or the disadvantages of the two styles.

Alternative Dispute Resolution in Kenya: Principles of Natural Justice in Relation to ADR proceedings

It is a fundamental requirement of justice in deciding a dispute between two or more parties,

1. Firstly that the arbitrator or the tribunal must be and must be seen to be disinterested and unbiased.

2. Secondly, every party must be given a fair opportunity to present his case and to answer the case of his opponent.

The first principle is embodied in section 13 of the Arbitration Act (cap 4 of 1995) which provides that when a person is approached for appointment as an arbitrator he must disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. That duty on the part of the arbitrator is a continuing duty right from the time that he is approached through to the time he accepts appointment, conducts the reference, and renders his award.

So under section 13(2) the arbitrator is obliged through the arbitral proceedings to disclose without delay such circumstances.

The arbitrator must be on his guard with respect to connections with a party or connections in the subject matter of dispute or connections with the nature of the dispute. And the test that the arbitrator must always bear in mind is whether a reasonable person not being a party to the dispute would think that the connection was close enough to cause the arbitrator to be biased.

So there are three elements there of connections.-

--party

--subject matter

--nature of the dispute

The arbitrator under Kenya law has an obligation to conduct the reference impartially in both actions and words and to decide each issue put before him fairly and impartially. And whatever the provocation, each decision must be made impartially. There is therefore an overriding duty to work fairly and dispassionately even if one of the parties, for example, provokes the arbitrator by making the wildest of accusations.

The arbitrator should also take pains not to associate with one party of his representative more than with the other. He should, for example, never have lunch with one party during a hearing or in the course of the reference in the absence of the other party. He should also try to avoid even casual conversation with one side in the absence of the other. For his confidence in his own probity may not be shared by a party who does not know him.

Each party must also be given a fair opportunity to present their case and to know the opposing case and to meet the opposing case.

Under section 19 of the Arbitration Act, for example, parties must be treated with equality and each party given full opportunity of presenting their case.

Section 21 is perhaps also relevant in this regard in that if parties have not agreed on the place of arbitration, the tribunal must determine the place having regard to the circumstances of the case and the convenience of the parties. The arbitrator is doing a balancing act.

Under Section 21 the parties have the right to agree on the venue, failing which section 21 (b) intervenes.

Section 24 provides for exchange of statements of claim and statements of defence: To inform parties of the case they are to meet: natural justice.

Section 25 provides that the arbitral tribunal must hold oral hearings unless the parties have agreed that no hearing shall be held. For the same reason an arbitrator should not receive oral evidence or arguments from one party in the absence of the other. Neither should the arbitrator receive any document from one party without ensuring that the other party receives a copy. It is important to make it clear to the parties that all correspondence with the arbitrator must be copied to the other party. This should be in the agenda of the preliminary meeting.

The arbitrator, if there is to be a hearing, must fix hearing dates so far as practicable convenient to both parties.

Other provisions in the Arbitration Act that you may want to look at:

Section 27, where a tribunal appoints an expert if it has the power to do so. The report must be available to the parties and they must have the opportunity to examine that expert and to present their own expert on the subject.

Section 29: obligation on the part of the tribunal to decide the dispute in accordance with the rules agreed upon by the parties

What happens when an arbitrator uses his knowledge and experience to determine the matter? Should the parties have right to influence the judge’s mind? That is where the arbitrator is empowered by the parties to use his own expertise, he should grant the parties an opportunity to comment on his views and so on.

Section 35 deals with the setting aside of an award. If a party was not afforded an opportunity to be heard, notice not served, appointment of arbitrator, etc.

Under section 26 an arbitrator has powers to decide on a hearing date unless otherwise agreed by the parties. Any party that fails to attend a hearing, the hearing could go on, etc.

In summary, the principles of natural justice must be observed in the arbitral process.

Go through the Arbitration Act in your own time and see what sections have a bearing on natural justice.

When drafting the substantive contract it is important to point out that in case of any dispute the matter is to go before arbitration. This can be part of the substantive contract or just a clause.

Invariably almost all insurance companies include arbitration clauses in all their policies.