outcomes that may not satisfy the interest of the parties concerned .
ADR justice systems aide to strengthen the rule of law and contribute to national development as they enhance access to justice . Access to justice is a fundamental human right as it forms the basis for the enjoyment of other rights . However , a majority of low income citizens are faced with various constrains such as high filing fees , bureaucracy , complex procedures , illiteracy , distance from the courts and the legal knowhow in access to timely justice . It is against this backdrop that Kenya embarked on legal reforms to integrate alternative forms of dispute resolution in the administration of justice to curb unnecessary delays .
The promulgation of the 2010 Constitution of Kenya was a key reform in the administration of justice in Kenya . The Constitution allows Courts and Tribunals to be enjoined in exercising judicial authority by applying alternative forms of dispute resolution . In principle , the Judiciary has undertaken to develop rules on alternative dispute resolution as well as sensitizing the court users and the communities on available options on alternative dispute resolution .
ADR presents a desirable option of accessing justice and management of conflict because of the benefits of the parties being close to the arbitrators , the flexibility and expeditious nature of the process , and because the process fosters relationships , is voluntary-based and cost effective . As a result , ADR fosters societal harmony over individual interests and humanness as expressed in terms of Ubuntu in South Africa and Utu in East Africa .
Dispute Categories
It is evident that dispute resolution has evolved over time in the Kenyan set up . First , political conflicts can be addressed through litigation as a matter of principle , based on their nature . However , if they have far reaching consequences , use of mediation as opposed to Court litigation can effectively account for the deep seated , systemic and structural issues that characterize the conflict .
The second category refers to the types of disputes that litigation deems appropriate but can be resolved through mediation given their relatively minor nature . Domestic disputes are indicative of this second category and speak to the attractiveness of ADR in terms of its cost effectiveness and the relatively less red tape involved as opposed to settling in court .
The third category involves issues and concerns that collectively affect a broad segment of the society to the extent that they are transnational in nature . Concerns such as climate change , for instance fits well in this category and highlights the role that ADR can play at international level where there is a general void of effective litigation process or when international laws lack enforceability and the power to bring out quick and effective behavioral change among multitude of different people .
Alternative Dispute Resolution Mechanisms Arbitration
Arbitration is a process that is subject to statutory controls i . e Arbitration Act 1995 and the Civil Procedure Act . It arises where a private tribunal or an individual is appointed to determine a dispute and render a final binding decision called an award . In Arbitration any person can represent a party in the dispute . The process is adversarial and in many ways
Article 159 of the Constitution appreciates the use of Alternative Dispute Resolution ( ADR ) in addition to the Court process in settling conflicts in the society . While exercising judicial authority , the Court system is envisaged to promote ADR mechanisms . resembles litigation . An arbitration award can be filed in court for enforcement .
Negotiations
Negotiations aims at harmonizing the interest of the concerned parties amicably . The aggrieved parties themselves explores different options for dispute resolution without involving a third party . It entails both forward and backward linkages between the aggrieved parties in which settlement offers are made by either party . The effectiveness of this mechanism is anchored on the ability of the concerned parties to negotiate .
Mediation
If negotiation fails the parties resort to mediation , where a third party attempts to resolve the conflict . A mediator sits down with the two disputing sides and facilitates a discussion between them to reach a consensus . Often mediators are respected people of the community or organization of the disputants . They are trustworthy individuals owing to their accumulated experience and wisdom . They consider available options for dispute resolution and make recommendations while making assessments and conveying suggestions on behalf of the aggrieved parties emphasizing on relevant norms and rules in assisting the parties to reach an agreement .
The role of mediation within the principle of ADR is very essential on addressing challenges facing the society and confronting the world ’ s collective concerns surrounding peace and security in constructive peaceful and sustainable ways . However , it ’ s worth noting that the field of ADR is constantly changing to meet the demands of a dynamic and shifting international systems , and the practice of mediation is now widely accepted within the realms of political conflict management .
Conciliation
Conciliation is not universally defined mechanism and may bear different meanings in different jurisdictions . In Kenya , it is described as a mechanism used to test the possibility of two disputing parties making up and assuming
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