Alternative Dispute Resolution (ADR) Mechanisms

Objective:

By the end of this lesson, you will learn about Alternative Dispute Resolution (ADR) mechanisms and understand their advantages over traditional litigation. This knowledge will empower you to appreciate ADR’s role in resolving disputes efficiently and amicably, preparing you for mediation practice.

Role Play: A Dispute Between a Tenant and Landlord in Nairobi Over Unpaid Rent and Property Damage

To apply the concepts of this lesson, consider the following scenario:

Background: In Nairobi, a tenant, Amina, and her landlord, Mr. Kamau, are in conflict. Amina has not paid rent for three months, claiming Mr. Kamau failed to repair a leaking roof that damaged her furniture. Mr. Kamau insists Amina pay the full amount owed—KSH 90,000—before he addresses repairs, and he accuses her of causing additional property damage. The dispute is escalating, with Mr. Kamau threatening eviction and Amina considering legal action.

Parties Involved:

• Amina (Tenant): Believes she shouldn’t pay rent until repairs are made and seeks compensation for her damaged furniture.
• Mr. Kamau (Landlord): Demands full payment upfront and blames Amina for property damage, refusing repairs until settled.

Task: As you work through this lesson, think about how ADR could resolve this dispute. Which mechanism might suit these parties? What are the benefits over going to court? We’ll revisit this at the end to apply your learning.

Course Content:

1. Definition of ADR

Alternative Dispute Resolution (ADR) refers to methods of resolving disputes outside traditional courtroom litigation. The 40-Hour Mediation Course Handbook provides several definitions:

• Broad Scope: ADR includes all decision-making processes other than litigation, such as negotiation, conciliation, mediation, and arbitration (Strathmore Law Journal, 2015).
• Constitutional Recognition: The 2010 Constitution of Kenya, under Article 159(2)(c), recognizes ADR as a principle for exercising judicial authority, encompassing reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms.
• Legislative Definition: The proposed Alternative Dispute Resolution Bill 2019 in Kenya defines ADR as “conciliation, mediation, traditional dispute resolution or any other mechanism of resolving disputes in which a person assists parties to resolve a dispute otherwise than through the normal judicial process or arbitration” (S.2(1)).
• Practical Essence: ADR offers constructive, private, and confidential ways to settle disputes without formal trials (Mbaabu, 2018).

Summary: ADR is a spectrum of flexible, non-adversarial processes that help parties reach agreements with the assistance of a neutral third party, avoiding the delays and costs of litigation.

Reflection Question: How might ADR benefit Amina and Mr. Kamau compared to a courtroom battle?

2. Types of ADR

ADR mechanisms vary in approach, from consensual to adjudicative. Here are the common types outlined in the handbook:

• Negotiation: Parties directly discuss and resolve their dispute without a third party. Amina and Mr. Kamau could negotiate a payment plan and repair schedule themselves.
• Mediation: A neutral mediator facilitates dialogue to help parties reach a voluntary agreement. This could involve a mediator guiding Amina and Mr. Kamau to compromise on rent and repairs.
• Conciliation: Similar to mediation, but the conciliator may suggest solutions. A conciliator might propose Amina pays half the rent while Mr. Kamau fixes the roof.
• Arbitration: A neutral arbitrator hears both sides and makes a binding decision. If mediation fails, Amina and Mr. Kamau could agree to arbitration for a final ruling.

Visual Aid (ADR Spectrum): Imagine a line from “Consensual” (negotiation, mediation) to “Adjudicative” (arbitration), showing how control shifts from parties to a third party as you move along.

Key Insight: Each type suits different disputes—negotiation for simple issues, mediation for relationship preservation, and arbitration for decisive outcomes.

Reflection Question: Which ADR type seems most appropriate for Amina and Mr. Kamau’s dispute? Why?

3. Advantages and Disadvantages of ADR

ADR offers distinct benefits over litigation, but it’s not without drawbacks. Here’s a breakdown from the handbook:

Advantages:

• Speed: Resolves disputes faster than court processes (e.g., mediation can conclude in weeks, not years).
• Cost-Effectiveness: Lower fees and no lengthy legal battles—vital for Amina and Mr. Kamau’s budgets.
• Confidentiality: Keeps disputes private, unlike public court records.
• Control: Parties retain decision-making power in consensual processes like mediation.
• Relationship Preservation: Non-adversarial approaches foster cooperation, helpful for ongoing tenant-landlord ties.
• Flexibility: Tailored solutions, such as a rent reduction tied to repairs, vs. rigid court rulings.

Disadvantages:

• Non-Binding Outcomes: In mediation, agreements depend on goodwill unless formalized (e.g., Amina might not honor a deal).
• Limited Enforcement: Unlike court judgments, ADR outcomes may need court approval to be enforceable.
• Not Suitable for All Cases: Issues needing legal precedent (e.g., constitutional matters) don’t fit ADR.
• Potential Imbalance: Power disparities (e.g., Mr. Kamau’s leverage as landlord) can skew results without skilled facilitation.

Table : Advantages and Disadvantages of ADR

Reflection Question: What advantage of ADR might appeal most to Amina? To Mr. Kamau?

4. Legal Framework for ADR in Kenya

ADR in Kenya is supported by a robust legal structure:

• Constitution of Kenya (2010): Article 159(2)(c) mandates the Judiciary to promote ADR, including mediation, arbitration, and traditional mechanisms.
• Civil Procedure Act: Section 59A establishes the Mediation Accreditation Committee (MAC) to train, accredit mediators, and enforce ethical codes.
• Proposed ADR Bill 2019: Aims to formalize ADR processes like conciliation and mediation outside judicial or arbitration settings.
• Mediation Rules 2015: Provide guidelines for court-annexed mediation (more in Module 10), ensuring structured referrals and processes.
• International Frameworks: The Singapore Convention (2018) and UNCITRAL Model Law support enforceable mediation agreements, influencing Kenya’s global alignment.

Key Insight: This framework ensures ADR is standardized and legally recognized, boosting its credibility and use in Kenya.

Reflection Question: How does Kenya’s legal support for ADR reassure Amina and Mr. Kamau about using mediation?

Applying the Lesson to the Role Play

Let’s revisit Amina and Mr. Kamau’s dispute:

• Definition: ADR could help them resolve their rent and repair disagreement privately and collaboratively.
• Type: Mediation seems ideal—allowing flexibility and preserving their relationship, unlike arbitration’s binding nature.
• Advantages: Mediation offers speed (resolving in weeks), cost savings (no legal fees), and a tailored solution (e.g., partial rent payment with repairs).
• Legal Framework: Article 159(2)(c) supports mediation, and the MAC could provide an accredited mediator to guide them.

Your Role as Mediator: You’d facilitate a discussion where Amina pays a reduced rent while Mr. Kamau fixes the roof, formalizing the agreement for enforceability under Kenyan law.