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Alternative Dispute Resolution (ADR)
Definition of Alternative Dispute Resolution (ADR)
š Definition in Context
Alternative Dispute Resolution (ADR) refers to a collection of structured mechanisms used to resolve disputes without recourse to the formal judicial process. These mechanisms are designed to offer more flexible, private, less adversarial, and more cost conflicts. ADR stands in contrast to litigation, which is governed by strict procedural rules,-effective means of resolving judicial control, and public adjudication. Blackās Law Dictionary āA procedure for settling a dispute by means other than litigation, such as arbitration, defines ADR as: mediation, or negotiation.ā Brown & Marriott (3rd ed., 2011) āADR refers to processes that enable disputes to be resolved by agreement or determination further elaborate: without the need for litigation in a court or tribunal.ā
āļø Core Mechanisms of ADR
- Negotiation o A voluntary process involving only the disputing parties who seek to reach a o mutuallyOften informal and flexible.^ acceptable agreement. o Emphasized in based negotiation rather than positional bargaining. Fisher & Uryās "Getting to Yes" (1999) which promotes interest-
- Mediation o Involves a neutral third party (mediator) who facilitates discussions between o disputing parties to help them reach an agreement.Mediator does not impose a decision. o In Kenya, Court (Pilot Project) Rules, 2015.-Annexed Mediation was institutionalized under the Mediation
- Conciliation o Similar to mediation, but the conciliator may actively propose solutions. o Provided for under the industrial disputes. Labour Relations Act, 2007 , particularly for resolving
- Arbitration o A more formal process where a neutral third party (arbitrator) hears the parties' submissions and renders a binding decision (award).
o Governed in Kenya by the 1997. Arbitration Act, Cap. 49 and the Arbitration Rules,
- Traditional Dispute Resolution Mechanisms (TDRMs) o Community-based or customary processes of resolving disputes, such as village o eldersā foruRecognized underms. Article 159(2)(c) of the Constitution of Kenya, 2010. o However, violating the Bill of Rights. Article 159(3) limits their application in criminal cases or matters
š Statutory Definition and Recognition in Kenya
ļ· Constitution of Kenya, 2010 ā Article 159(2)(c) āIn exercising judicial authority, the courts and tribunals shall be guided by the principle that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanis promoted, subject to clause (3).ā ms shall be ļ· Civil Procedure Act, Cap. 21 ā Section 59B āA court may refer a matter for arbitration, conciliation, mediation or other appropriate ADR mechanism at any stage of the proceedings.ā ļ· Nairobi Centre for Provides for international and domestic arbitration and mediation services. International Arbitration Act, 2013 ā Section 3
c) Theoretical Basis for Alternative Dispute Resolution (ADR) With Common Law Case Support (6 Strong Theories)
1. Access to Justice Theory
This theory underpins ADR as a solution to the barriers of cost, delay, and formality in the court system. It recognizes that the traditional judiciary is often inaccessible to the poor, marginalized, and underrepresented. āļø R v Lord Chancellor, ex parte Witham Common Law Case : [1998] QB 575 Facts Judgment : A litigant challenged court fees that restricted his access to court.: The court held that access to justice is a constitutional right, and no administrative
4. Communitarian and Customary Law Theory
ADR African communities have long used eldersā forums, reconciliatory dialogue,āespecially traditional formsāarises from the values of collective justice and restoration. and communal consensus to resolve disputes. āļø Kimani v Gikanga Common Law Case [1965] EA 735: Facts Judgment : Land dispute resolved under Kikuyu customary law.: Court upheld a customary dispute resolution decision, emphasizing the legitimacy of indigenous Application systems where fair and consistent.: Customary ADR fosters culturally resonant and accepted forms of justice, especially in land, marriage, and family disputes. š View of ADR in Kenya Reference : Grande, E. āADR and Power Structures in Africaā; Aloo, L. (2023), A Heterodox
5. Therapeutic Jurisprudence
This theory evaluates legal processes based on their psychological impact. ADR is seen as therapeuticāencouraging empowerment, emotional healing, and active participation.
āļø Hal Common Law Casesey v Milton Keynes General NHS Trust : [2004] EWCA Civ 576 Facts Judgment : Claimant declined mediation; issue was whether court could compel it.: Mediation must be voluntary, but the court recognized it as less confrontational and more therapeutic for resol Application : ADR minimizes trauma for parties (e.g., in sexual offence, domestic, or juvenileving disputes. cases), unlike formal adversarial proceedings. š Reference : Menkel-Meadow, C. ( 1996 ), The Trouble with the Adversary System
6. Economic Efficiency Theory (Law & Economics)
ADR is economically rational: it reduces the direct and indirect costs of dispute resolution. Arbitration is especially favored in commercial contexts for its speed, confidentiality, and finality. āļø Cha Common Law Casennel Tunnel Group Ltd v Balfour Beatty Construction Ltd : [1993] AC 334 Facts : Construction contract with arbitration clause; one party wanted to litigate.
Judgment and party autonomy.: The House of Lords enforced the arbitration agreement, citing commercial expedience Application : Courts support ADR as a cost-saving, business-friendly process. š 49, Kenya) Reference : Brown & Marriott, ADR Principles and Practice (3rd ed.); Arbitration Act (Cap
d) Relative Advantages and Disadvantages of ADR and the Court System The choice between determined by numerous legal, economic, social, and procedural considerations. Both systems Alternative Dispute Resolution (ADR) and formal litigation is have strengths and limitations, depending on the nature of the dispute, part and intended outcomes. ies involved, urgency,
š· I. ADVANTAGES OF ADR OVER THE COURT SYSTEM
1. Cost-Effectiveness
ļ· ADR is typically far cheaper than litigation, which often involves court fees, advocate fees, adjournments, and appeals.
Common Law Case Dunnett v Railtrack plc : [2002] EWCA Civ 302 Facts Judgment : Defendant refused mediation and won, but was denied costs.: The court emphasized that refusing ADR unreasonably may result in cost penalties. Application : ADR saves costs for both the judiciary and litigants. Kenyan Reference significantly reduced case backlog at Family and Commercial Divisions in Nairobi.: Mediation (Pilot Project) Rules, 2015 ā Court-annexed mediation
2. Time-Efficiency
ļ· ADR mechanisms (e.g., arbitration and mediation) are often process. faster than the lengthy court
Common Law Case Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd : [1993] AC 334
6. Cultural and Contextual Appropriateness
ļ· TDRMs are rooted in communal justice systems that reflect African values. Kenyan Republic v Mohamed Abdow Mohamed Case : [2013] eKLR Judgment : Traditional justice mechanisms are valid if not repugnant to justice and morality. Scholarly Support African jurisprudence.: Leonard Aloo (2023) & Grande (1999) ā advocate ADRās legitimacy in
š» II. DISADVANTAGES OF ADR COMPARED TO THE COURT SYSTEM
1. Lack of Legal Precedent
ļ· ADR decisions are often private and unpublished, limiting their value for developing legal jurisprudence.
Critique public norms.: Owen Fiss in Against Settlement (1984) ā Settlement lacks the formal articulation of
2. Limited Right of Appeal
ļ· Arbitration awards are binding with very narrow grounds for challenge. Common Law Case Lesotho Highlands Development Authority v Impregilo SpA : [2005] UKHL 43 Judgment award. : Emphasized limited grounds under the English Arbitration Act to set aside an arbitral
Kenyan Case held that limited appeals exist only where grave injustice would o: Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLRccur. ā Supreme Court
3. Risk of Power Imbalance
ļ· Weaker or unrepresented parties may be pressured into unfair settlements in mediation or negotiation.
Common Law Case R v Leraas Lenchura : [2012] eKLR Judgment where vulnerable victims may be compromised.: Courts cautioned against forced settlements in criminal cases via traditional methods,
4. No Coercive Powers
ļ· Mediators and conciliators cannot compel attendance or compliance, unlike judges. Legal Gap order. : Enforcement of mediation agreements requires additional court approval or consent
5. Not Suitable for Certain Disputes
ļ· Constitutional interpretation, criminal cases, and human rights violations require authoritative and public adjudication.
Kenyan Constitutional Provision contravene the Constitution or violate fundamental rights.: Article 159(3) ā Traditional dispute resolution must not
6. Fragmentation and Inconsistency
ļ· Without procedural uniformity, ADR processes may vary in quality, especially with untrained facilitators.
Scholarly Note fairness. : Menkel-Meadow (1996) ā ADR must be regulated to prevent abuses and ensure
e) ADR and the Constitution of Kenya The justice by formally integrating Constitution of Kenya, 2010 Alternative Dispute marked a transformative moment in the administration of Resolution (ADR) into the legal system. ADR is no longer merely an informal or secondary means of resolving disputes part of the constitutional framework governing judicial and quasi-judicial processes in Kenya.āit now forms
ā³ļø Connection to ADR: ļ· ADR mechanisms such as community-led TDRMs reduce cost, time, and complexity. court-annexed mediation , tribunal-led conciliation , and ļ· Promotes inclusive access , especially in rural and underserved regions. Judiciary Implementation Court Annexed Mediation Program (CAMP) launched under Judiciaryās Mediation (Pilot: Project) Rules, 2015.
š¹ 4. Article 189 ( 3 ) & ( 4 ): Intergovernmental Dispute Resolution
Text āGovernment at either level: shall co-operate in the exercise of their functionsā¦ Any dispute between the governments shall be resolved through negotiation, mediation, and arbitration.ā ā³ļø Application: ļ· Promotes governmen intergovernmental ADR ts. , particularly between county and national ļ· Supported by resolution frameworks. Intergovernmental Relations Act, 2012 , which establishes dispute
š¹ 5. Article 113 : Legislative Disputes and Mediation Committees
Text Provides for mediation committees to resolve disagreements between the Nationa: l Assembly and Senate on legislative matters. ā³ļø Function: ļ· ļ· Institutionalization ofReflects commitment to non ADR within Parliament - adversarial resolution of law. -making conflicts.
š¹ 6. Article 67 ( 2 )(f): Land and Alternative Dispute Resolution
Text The National Land Commission shall encourage the application of traditional dispute resolution: mechanisms in land conflict resolution.
Case Reference Kimani v Gikanga [1965] EA 735 : ā Recognized land dispute resolution via customary processes as legitimate, provided they are consistent with fairness and due process.
š¹ 7. Article 10 : National Values and Principles of Governance
ļ· These include development. equity , social justice , inclusiveness , human dignity , and sustainable ļ· ADR contributes to these values by community-centered justice processes. promoting reconciliatory , non-coercive , and
š¹ 8. Article 159 and Judicial Practice: Courtās Role in Promoting ADR
Courts must not merely recognize ADRāthey must actively promote it : ļ· ļ· Referrals to mediation or arbitraEnforcement of arbitration awards under thetion (see Civil Procedure Act, Sec 59A Arbitration Act (Cap 49) - B) ļ· Promotion of Traditional Dispute Resolution (TDR) under judicial supervision Common Law Support Halsey v Milton Keynes NHS Trust [2004] EWCA Civ : 576 Held constitutional ADR.: Courts may encourage ADR but must not compel itāvoluntariness is a core principle of
Negotiation in ADR
a) Definition of Negotiation
Negotiation with conflicting interests or needs engage in dialogue to reach a mutually acceptable agreement. is a voluntary, interactive, and communicative process where two or more parties
š āA process of communica Fisher, Ury & Patton ( tion back and forth for the purpose of reaching a joint decision when 1999 ) define negotiation as: you and the other side have some interests that are shared and others that are opposed.ā š āThe art of letting the other side have your way.ā Chris Voss ( 2016 ) describes negotiation as:
āļø Case Law: Halsey v Milton Keynes General NHS Trust [ 2004 ] EWCA Civ 576
Facts The claimant pursued litigation instead of accepting mediation, and after losing the case, the: court had to determine mediate. whether costs should be awarded against them due to their refusal to
Judgment The Court of Appeal held that while mediation should be encouraged, it cannot be imposed upon: unwilling parties. However, a refusal to mediate could justify a denial of unreasonable. costs if the refusal was
Significance The judgment supports the collaborative negotiation model by highlighting judicial preference: for amicable resolution and cooperation before resorting to litigation.
š¹ 3. Compromising Style
š Description:
This style is based on mutual concession. Parties agree to āsplit the differenceā and settle for a solution that may not fully satisfy either party but is acceptable to both.
āļø Case Law: Peel v Coln Valley Plant Ltd [ 2003 ] EWCA Civ 184
Facts A dispute arose regarding unpaid hire fees. Instead of pursuing full litigation, the parties entered: into a negotiated compromise, which one party later attempted to undo. Judgment The Court of Appeal upheld the validity and enforceability of the compromise ag: reement, affirming that once a clear and agreed compromise is reached, parties are bound by it. Significance The case shows the legal recognition of compromise as a legitimate and binding resolution,: reinforcing the importance of finality in settlements reached through negotiation.
š¹ 4. Accommodating Style
š Description:
This style is characterized by one party yielding to the other, often to preserve harmony or respect social and hierarchical relationships. It is prevalent in settings where cultural values prioritize respect and peace over confrontation.
āļø Case Law: R v Leraas Lenchura [ 2012 ] eKLR
Facts A community attempted to resolve a defilement case using traditional elders' mediation. The: victimās family was persuaded not to pursue the case, and the elders. a fine was imposed on the accused by
Judgment The High Court rejected the outcome of the traditional process, stating that serious criminal: matters must be prosecuted under the Constitution and criminal law. The court reiterated that customary practices cannot override statutory requirements.
Significance The case illustrates that while the accommodating style is embedded in traditional justice, it has: limitations, especially in contexts involving fundamental rights and criminal liability.
š¹ 5. Avoidant Style
š Description:
An avoidant style involves sidestepping confrontation altogether. Parties may delay, defer, or refuse to engage in negotiation altogetherāeither as a strategy or due to fear, uncertainty, or lack of readiness.
āļø Case Law: Cable & Wireless Plc v IBM UK Ltd [ 2002 ] EWHC 2059 (Comm)
Facts The contract between Cable & Wireless and IBM contained a clause requiring ADR before: litigation. IBM refused to engage in ADR and went straight to court. Judgment The court granted a st: ay of proceedings, ordering IBM to comply with the ADR clause. The judge emphasized that parties must honour their contractual obligation to attempt negotiation or ADR before resorting to litigation.
1. Competitive Negotiation (Distributive Bargaining)
š Description:
Competitive negotiation assumes that the dispute involves a gameāwhere one partyās gain is the otherās loss. It is characterized by fixed amount of value positional bargaining āa zero-sum, secrecy, limited information sharing, and tactics such as bluffing, anchoring, and hard deadlines. š valueā rather than creating it. Brown & Marriott (3rd ed., Ch. 4) note that competitive negotiation focuses on āclaiming
āļø Case Law: Walford v Miles [ 1992 ] 2 AC 128
Facts Walford negotiated to buy a business from Miles. Miles orally agreed not to negotiate with other: parties. Nonetheless, he sold the business to a third party. Walford sued, claiming there was an agreement to negotiate in good faith.
Judgment The House of Lords held that an agreement to negotiate in good faith was: unenforceable under English law, as it was uncertain and conflicted with the adversarial nature of bargaining. Lord Ackner stated that in competitive negotiation, parties are not required to subordinate their interests. Significance The judgment illustrates how courts accept the reality of competitive positioning in commercial: negotiations and reinforce the legal principle of freedom to bargain hard without legal liability.
2. Co-operative Negotiation (Integrative or Interest-Based Bargaining)
š Description:
Co parties rather than rigid positions. The goal is to-operative negotiation seeks win-win solutions expand the pie by focusing on the underlying before dividing it, through interests of the collaboration, trust-building, and open communication. š negotiation, advocating for focus on interests, objective criteria, and op Fisher, Ury, & Patton ( Getting to Yes , 1999) pioneered the concept of principledtions for mutual gain.
āļø Case Law: Halsey v Milton Keynes General NHS Trust [ 2004 ] EWCA Civ 576
Facts The claimant declined to mediate and proceeded to trial. The court ruled in favour of the: defendant. The question was whether refusal to engage in ADR should affect the costs order. Judgment The Court held that while mediation cannot be forced, a: refusal to consider ADR may justify a denial of legal costs non-adversarial resolution.. The judgment emphasized the courtās growing support for co-operative,
Significance The case reinforces the judicial preference for: co-operative negotiation as a cost-effective, humane, and relationship-preserving alternative to litigation.
š Comparative Analysis Table Criteria Competitive Negotiation Co-operative Negotiation Goal Win at all costs / Claim maximum value^ Mutually beneficial solution / Expand value Strategy Positional, demand-driven, guarded Interest-based, exploratory, transparent Relationship Impact Adverse or indifferent Preserved and often strengthened Communication Style Limited disclosure, bluffing, anchoring Open communication, joint problem solving - Legal Enforceability Hard positions are accepted (e.g., Walford v Miles ) Encouraged in court Halsey ) -mandated ADR (e.g., Court Perspective Permitted, especially in commercial settings^ Preferred, particularly where ADR clauses exist Best Used When One-off transactions, hostile disputes Long party issues-term relationships, sensitive or multi-
d) Principled Negotiation With supporting common law case law, references, and legal application.
must not to resolving emotional or relational disputes. worsen the personal conflict and that ADR processes like mediation are better suited
Significance This judgment reinforces the need to separate personal relationships from the dispute, a core: aspect of principled negotiation.
š¹ 2. Focus on Interests, Not Positions
š Principle:
Positions are what people say they want; interests are the reasons behind those positions. Effective negotiators uncover the underlying needs, fears, concerns, and values that drive each party. Fisher et al. (1999) satisfy it.ā : āFor every interest there usually exists several possible positions that could
āļø Case Law: Radmacher v Granatino [ 2010 ] UKSC 42
Facts A French national challenged the terms of a prenuptial agreement he had: signed with a wealthy German heiress. The parties held very different them, especially after the marriage broke down. positions on whether the agreement should bind
Judgment The UK Supreme Court shifted the focus away from the formal: positions to the interests that underpinned the agreement Court upheld the prenup, emphasizing the importance of understanding intentions and interestsānamely, autonomy, intention, and protection of family wealth. The over formal demands. Significance This case illustrates t: hat even in high-stakes family disputes, a principled approach focusing on interests rather than rigid positions provides a fairer resolution.
š¹ 3. Invent Options for Mutual Gain
š Principle:
Parties should engage in Brainstorming alternative solutions helps avoid stalemates and can uncover outcomes that creative problem-solving rather than premature decision-making. benefit both sides. Fisher et al. : āDonāt settle for the first answer. Create options, then decide.ā
āļø Case Law: Cable & Wireless Plc v IBM UK Ltd [ 2002 ] EWHC 2059 (Comm)
Facts The parties had a contract requiring them to attempt ADR before litigation. IBM refused and: went straight to court. Cable & Wireless sought enforcement of the ADR clause. Judgment The High Court stayed: the proceedings, enforcing the ADR clause. The judge emphasized that the parties should explore creative options for resolution before burdening the courts. Significance The courtās endorsement of negotiated settlement and ADR reinforces the third pillar: of principled negotiation through structured dialogue.ā expanding the range of possible mutually beneficial outcomes
š¹ 4. Insist on Using Objective Criteria
š Principle:
Rather than relying on power or pressure, negotiators should refer to as legal precedent, expert opinion, or market valueāto justify their positions and assess fairness. objective standards āsuch
Fisher et al. : āReason and principle are far more powerful than threats.ā
āļø Case Law: Barclays Bank Plc v Nylon Capital LLP [ 2011 ] EWCA Civ 826
Facts A dispute arose over profit: -sharing from a complex financial transaction. Barclays argued that its share should be calculated based on market contested the figures. -based performance benchmarks. Nylon Capital
