Contemporary Issues in the Regulation of ADR in Kenya

July 9, 2022

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*

Some of the contemporary issues in the regulation of ADR in Kenya include referral of disputes to ADR, that is, whether the same is compulsory or voluntary, obligations of parties to participate in ADR and standards and accreditation of ADR practitioners.

Referral of disputes to ADR

Law makers need to decide which method of ADR referral should be employed. Referral may be compulsory by a court or voluntary, where parties are at will to decide whether to submit their dispute to an ADR forum. It may also be mandatory or at the discretion of the referrer, as contemplated in the Mediation (Pilot Project) Rules, 2015. The Civil Procedure Act provides for discretionary compulsory referral as well as voluntary referral. Where there is compulsory participation, it is important that there be established professional standards for the process as well as for the practitioners, to ensure a quality process and a quality outcome. These processes also need to be described so as effectively promote public confidence. It is noteworthy that one of the main reasons why most of the ADR mechanisms are popular and preferred to litigation are their relative party autonomy which makes parties gain and retain control over the process and the outcome.

It is therefore important for the court to ensure that there is no foreseeable factor that may interfere with this autonomy as it may defeat the main purpose of engaging in these processes. One of the constitutional requirements with regard to access to justice in Kenya is that the State should ensure that cost should not impede access to justice and, if any fee is required, the same should be reasonable. It is, therefore, important that even where persons use private means of accessing justice, the cost should be reasonable. This is especially where there was no prior agreement to engage in ADR.

One of the advantages of ADR mechanisms is that the outcome is flexible and parties can settle on outcomes that satisfactorily address their needs. This should not be lost as it would affect parties’ ability and willingness to participate in such processes. Courts are, therefore, under obligation to ensure that parties are able to access justice using the most viable and cost effective conflict management mechanism. In this regard, courts can play a facilitative role in encouraging the use of ADR and TDR mechanisms to access justice.