Dispute Resolution


“Conflict lies at the core of innovation” Emanuel R. Piore

The above saying is poignant in the life of a lawyer. Conflicts are with us every day from someone bumping into you while you are in traffic, land transactions going awry, to tenants not paying rent. All these conflicts can be solved in several ways. Dispute resolution encompasses litigation, arbitration, mediation and negotiation. Below we shall briefly outline each of these dispute resolution mechanisms.

This is the process of solving a dispute through the courts. In Kenya, litigation takes the hilt when it comes to dispute resolution mechanisms. There are several ways in which to present your case in court depending on the dispute. Equally, there are different courts in which to present your dispute. The High Court of Kenya is divided into different divisions to facilitate the ease of filing and to allow the judges to hone in and develop a niche in certain aspects of the law. The Constitution of Kenya 2010 introduced the Environment and Land Court; and the Employment and Labour Relations Court to deal with land and employment matters respectively.

This is another dispute process in which an arbiter is appointed either with consent of the parties or by the chairperson of the Chartered Institute of Arbitrators to decide a dispute. Arbitration is quasi-judicial in that after the award has been delivered one has to file that award in the High Court to have it adopted as an award of the High Court. The advantage of arbitration is that it’s more expedient than filing a suit in court. Parties can choose an arbiter with experience in a certain field, for example a dispute over electrical fittings in a 25 storey building, would much better be handled by an experienced electrical engineer than a lawyer. The arbiter’s award can only be appealed or set aside on very strict grounds and therefore substantially reduces the chances of lengthy litigious battles.

Mediation is a process in which the parties to a dispute, through the use of a qualified mediator, come to an agreement over the dispute that is generated by the parties themselves. It is a win-win situation. An example is where an employee’s services are terminated and writes to the employer claiming unfair termination. This is the crux of the dispute between the employer and employee. A mediator would lead the parties above to an amicable settlement if they are open and willing to come to some middle ground. Mediation is the most cost-effective mechanism among the three options as there are no court fees and filing costs. It is also the fastest mode of dispute resolution. The Courts in Kenya recently introduced court-annexed mediation. This is where the court determines a matter to be prime for mediation and appoints a mediator. The parties have 60 days to try and conclude the matter. If the parties come to an agreement, then a settlement agreement is drafted and signed by disputants in the presence of a mediator and filed in Court which then proceeds to close the file in terms of the Settlement Agreement.

This is not really a dispute resolution mechanism, but nevertheless needs to be mentioned. Before parties head down the litigious path, advocates may assist to negotiate a settlement. These are normally disputes that mainly have a financial aspect ie. one party owes another party money with no need for declaratory orders. As advocates our job is to advise our clients of the best possible way to deal with a dispute which sometimes can be as simple as an apology.

Stephen Gikera

Chairman-Partnership Board

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