NAME ADM.

NO SIGNATURE
SAMUEL NGUGI MWANGI L95/4403/2023

MARYLINET MUTHONI L95s/15180/2023

WAMBUI
MUTINDA ANITAH L95s/15309/2023
MWENDE
ANGEL NATASHA KATAO L95s/15138/2023

CLAIRE NJOKI L95s/16309/2023

AISHA WAMBUGI L95s/15667/2023

SWALEH
GILLIAN SYOMITI L95s/15620/2023
MASAKU
MORAA ISABOKE L95s/15044/2023

WENDY ACHIENG L95/4437/2023

ATIENO

Content
1.Introduction
2.Definition of ADR
3.Legal framework
4.Types of ADR
5.Benefits of ADR
6.Shortcomings of ADR

7.Roles of ADR

8.Conclusion

INTRODUCTION
ADR refers to a range of techniques that allow parties to resolve disputes outside of the
courtroom. These techniques can include negotiation, mediation, and arbitration, among
others. By using ADR, parties can often reach a resolution more quickly and cost-effectively
than they would through traditional litigation. Additionally, ADR can help to preserve
relationships between parties by allowing them to work together to find a mutually acceptable
solution.
Alternative Dispute Resolution (ADR) refers to a set of processes used to resolve disputes
outside of the traditional court system. These processes include negotiation, mediation, and
arbitration, among others.

What is ADR?
One key difference between ADR and traditional dispute resolution methods is that ADR
allows parties to work together to find a mutually acceptable solution, rather than having a
decision imposed upon them by a judge or jury. This can lead to more creative and flexible
outcomes, as well as faster resolution times and reduced costs.

Types of ADR
1. Mediation
2. Arbitration
3. Conciliation
4. Negotiation
5. Traditional Justice systems

1.MEDIATION
Mediation is a form of Alternative Dispute Resolution (ADR) that has become increasingly
popular in Kenya in recent years. ADR is a process of resolving disputes outside of the
traditional court system. Mediation is a voluntary process in which a neutral third party,
known as a mediator, assists the parties in communicating and negotiating to reach a mutually
agreeable solution.

Mediation is a confidential process, and the mediator is not allowed to disclose any
information revealed during the mediation. This allows the parties to negotiate more freely
and productively, without fear of publicity. Mediation is also a relatively informal process,
and the parties are not required to follow strict rules of procedure.
Mediation can be used to resolve a wide variety of disputes in Kenya, including:

Family disputes, such as divorce, child custody, and child support

Business disputes, such as contract disputes, partnership disputes, and employment disputes
Community disputes, such as neighbor disputes and landlord-tenant disputes
Other types of disputes, such as medical malpractice and personal injury claims
The Kenyan government has actively promoted mediation as a form of ADR. In 2010, the
Kenyan Constitution was amended to explicitly recognize ADR as a means of resolving
disputes. The Civil Procedure Act was also amended to provide a framework for mediation.

2.ARBITRATION
Arbitration – a procedure in which a dispute is submitted by agreement of the parties, to one
or more arbitrators who make a binding decision on the dispute.

The Arbitration Act contains provisions relating to:

1. the composition and jurisdiction of the arbitral tribunal
2. the conduct of arbitral proceedings
3. the arbitral award and termination of arbitral proceedings
4. the recognition and enforcement of both local and foreign arbitral awards
5. the role of the courts in respect of arbitrations in general.

The Arbitration Act applies to both domestic and international arbitrations conducted in
Kenya.
An arbitration agreement is defined in Section 3 of the Arbitration Act as an agreement by
which parties submit to arbitration all or certain disputes which have arisen or which may
arise between them within the context of their legal relationship, whether the relationship is
contractual or not.
Parties to an arbitration agreement have the freedom to determine by agreement the number
of arbitrators that they need, and the process by which they appoint them.
Section 13(1) of the Arbitration Act requires an arbitrator to disclose, when approached to
potentially arbitrate a matter, any circumstances likely to compromise their impartiality or
independence.
The arbitrator’s obligation to disclose such circumstances does not end upon appointment but
will also include the time that they are appointed and the duration of the proceedings.
An arbitration agreement that meets the formal requirements set under Section 4 of the
Arbitration Act is what gives an arbitrator (or arbitral tribunal) jurisdiction to hear and
determine a dispute between parties.
An arbitrator’s authority is therefore limited to the extent of the issues which the parties have
set out in the arbitration agreement as capable of resolution by arbitration.
3.CONCILIATION
It is an alternative out of court dispute resolution instrument. An independent third party, the
conciliator, helps people in a dispute;
• Identify the disputed issues
• Develop options
• Consider alternatives
• Reach an agreement

The conciliator will not;

Take sides or make decisions
Decide who is right and wrong
Provide counselling
Most conciliators are highly skilled negotiators. The purpose of conciliation is to reach an
agreement. The ultimate decision to agree on the settlement remains with the parties.
They are interest-based, when proposing a settlement, the conciliator will take into account
the parties’ legal positions, and their commercial, financial and personal interests. Lawyers
can be present during conciliation but some processes do not require lawyers
Conciliation can be categorized into two:
1. Informal conciliation- disputes are addressed between a client and lawyer over the phone,
by email or in writing.
2. Formal conciliation- the client and lawyer meet to discuss and try to resolve the issue with
the help of a conciliator.
Key features of conciliation
Conciliation offers are impartial- Impartiality means the conciliator does not favor one party
over another, or have any stake in the outcome of the conflict.
✓ Conciliation is a voluntary process- Parties are free to agree and attempt to resolve their
dispute by conciliation
✓ Conciliation is confidential- It allows both sided to have open and frank discussion.
Information provided or discussed in conciliation cannot be used in any later legal
proceedings.
✓ Conciliation is independent- It is entirely separate from a court proceeding and if a
settlement is not reached, a claim can still be pursued.
4.NEGOTIATION
It is a voluntary and informal process by which parties to a dispute reach a mutually
acceptable agreement without the help of a third party.
Stages of negotiation
1.Planning and preparation: This entails being aware of both your own and the other party’s o
bjectives and priorities.
2. Establishing ground rules: This involves deciding on the negotiation’s format. E.g. To
agree on the rules of communication and decision-making.
3. Clarification and justification:
Each party provides a more thorough explanation of their stance and areas of interest.
4. Bargaining and problem-solving: This is the stage where the parties begin to exchange
offers and counteroffers.
5. Closure and implementation:This is the final stage of the negotiation, where the parties
agree on the terms of the agreement and put it into action.
Effective negotiation strategies
• Have a clear understanding of your own goals and the other’s party goals.
• Building a rapport helps one identify the areas of common ground and trust.
• Both parties need to be willing to compromise to reach an agreement.
• Understanding the other’s party interests to develop solutions beneficial to all.
• Pay attention to what the other party is saying, both verbally and non-verbally.
• Being able to communicate your needs in a clear &direct way, while still respecting the
other person.

5.TRADITIONAL JUSTICE SYSTEMS

HYBRID PROCESSES
A hybrid dispute combines two or more traditional dispute processes into one of the most
common hybrid processes, med-arb, in which the dispute is first referred to mediation and if
settlement is not reached its referred to arbitration.
Other types of hybrid processes are; neg-arb, med-arb, med-arb-med, arb-med-arb, neg-arb
Hybrid processes are useful where one of the parties has a superior bargaining position or
where the dispute turns on numerous issues.
CONSTRUCTION ADJUDICATION
Adjudication is the compulsory form of ADR for all the contracts that are subject to the act
It is a process operating under very tight timelines. The adjudicator is supposed to reach a
decision within 28 days, or the period stated in the contract.
The adjudicator is an impartial neutral independent third party who makes a binding decision
within construction disputes.
The decision of an adjudicator is binding unless the parties provide an appeal to arbitration
and sometimes litigation. Adjudication is therefore very effective in disputes as they need to
be settled with a strict time schedule.
There is no law governing adjudication in Kenya, however with the prevalence of FIDIC
types of contracts, parties in the construction industry Kenya have been forced to use
construction adjudication. Fidic means the international federation of consulting engineers
Decision of construction adjudicator is binding.
Alternative justice systems Refers to all those mechanisms that African people or
communities have applied in managing disputes or conflicts and which have been passed
from one generation to the other. They have also been described using other words such as
traditional, community, informal, customarily, indigenous and non-state systems.
Alternative justice systems: Refers to all those mechanisms that African people or
communities have applied in managing disputes or conflicts and which have been passed
from one generation to the other. They have also been described using other words such as
traditional, community, informal, customarily, indigenous and non-state systems. TJS are
anchored on customary law which is one of the sources of law in Kenya and more
importantly under article 159 2[c] and article 159 [3]. However, TJS are not to be applied in a
way that contravenes the bill of rights; is repugnant to justice and morality or results in
outcomes that are repugnant to justice or morality; or inconsistent with the constitution or any
written law.
ADVANTAGES OF TJS
Accessible to a majority of the population.
2. They foster relationships.
3. They are easy to understand by the rural, poor and illiterate people.
4. Parties have some sort of autonomy in the process.
5. They are generally cheap and don’t require a lot of expertise
Advantages of ADR
 Speed: ADR processes are often faster than litigation. This is because ADR processes
are more flexible and can be tailored to the specific needs of the dispute.
 Cost: ADR processes are often less expensive than litigation. This is because ADR
processes do not involve the same costs as litigation, such as court fees and attorney
fees.
 Flexibility: ADR processes are more flexible than litigation. This means that the
parties can agree to the rules of procedure, the location of the proceedings, and the
qualifications of the neutral third party.
 Confidentiality: ADR processes are often confidential. This means that the dispute
and the outcome of the dispute will not be made public.
 Control: ADR processes give the parties more control over the outcome of the
dispute. This is because the parties are directly involved in the negotiation and
mediation process.
  Preservation of relationships: ADR processes can help to preserve relationships
between the parties. This is because ADR processes are focused on finding a mutually
agreeable solution to the dispute.

Disadvantages of ADR
• Not all disputes are suitable for ADR. Some disputes are too complex or too
contentious to be resolved through ADR.
• ADR is not a guarantee of a resolution. Even if the parties are willing to participate
in ADR, there is no guarantee that they will be able to reach a resolution.
• ADR can be expensive. While ADR is often less expensive than litigation, it can still
be expensive, especially if the parties hire experienced ADR professionals.
• ADR can be time-consuming. While ADR is often faster than litigation, it can still
take time to resolve a dispute through ADR, especially if the parties are unable to
reach a resolution on their own.
• ADR can be unfair. If one party has more power or resources than the other party,
they may be able to use that power or resources to their advantage in the ADR
process.
 ADR can be unpredictable. The outcome of an ADR process is often
unpredictable, as it depends on the skill of the ADR professional and the
willingness of the parties to cooperate.

The Role of Alternative Dispute Resolution in Kenya

Alternative dispute resolution (ADR) has been gaining popularity in Kenya as a means of
resolving disputes outside the traditional court system. Currently, ADR is governed by the
Arbitration Act and the Civil Procedure Rules, which provide a legal framework for its use.
However, there are still challenges to the growth of ADR in Kenya. One major challenge is
the lack of awareness and understanding of ADR among the general public. Additionally,
there is a shortage of trained ADR practitioners and a need for more accessible and affordable
ADR services. Despite these challenges, there are opportunities for the growth of ADR in
Kenya, particularly in areas such as construction, commercial disputes, and family law.
STATISTICS
The number of cases solved by ADR in Kenya has been increasing in recent years. In 2021,
the Kenya Revenue Authority (KRA) resolved 559 cases through ADR, a 31% increase from
the previous year. The NCIA also reported a 13% increase in the number of ADR applications
received in 2021.
The following table shows the number of cases solved by ADR in Kenya from 2017 to 2021:

YEAR NUMBER
0F CASES
SOLVED

2017 335

2018 381

2019 427

2020 493

2021 559
CONCLUSION
In conclusion, alternative dispute resolution is a valuable and effective way to resolve
conflicts in Kenya. We have discussed the various types of ADR processes, including
mediation, arbitration, and conciliation, and highlighted their benefits. ADR offers cost
savings, time efficiency, and confidentiality that traditional legal proceedings cannot match.
It is important for individuals and businesses alike to explore ADR as a viable option for
resolving disputes. By doing so, we can alleviate the burden on our already overburdened
legal system and find mutually beneficial solutions to our conflicts. Let us embrace ADR and
work towards a more peaceful and just society.