DISPUTE RESOLUTION | LEGAL GLOSSARY

Dispute resolution in Kenya encompasses various methods and processes aimed at resolving conflicts and disputes between parties. It can be broadly categorized into two major types: adjudicative processes and consensual processes.

Adjudicative processes in Kenya include litigation and arbitration. Litigation involves parties presenting their case before a court of law, where an independent judge or magistrate makes a final binding judgment based on the evidence and legal arguments presented. Litigation follows formal court procedures and allows parties to present their case through legal representation.

Arbitration is another adjudicative process commonly used in dispute resolution. It involves referring the dispute to an impartial third party, known as an arbitrator or a panel of arbitrators, who hear the arguments and evidence presented by both sides. The arbitrator's decision, known as an award, is binding on the parties and is enforceable under the law.

On the other hand, consensual processes such as mediation, conciliation, or negotiation aim to facilitate a resolution by allowing the parties involved to reach a mutually acceptable agreement. Mediation involves a neutral third party, the mediator, who assists the parties in identifying issues, exploring possible solutions, and reaching a settlement. Conciliation is a similar process, but the conciliator may take a more active role in facilitating communication and suggesting solutions. Negotiation involves direct discussions between the parties, with or without the assistance of a facilitator, to find a mutually acceptable resolution.

In Kenya, there is a growing recognition and emphasis on consensual dispute resolution processes, particularly mediation and arbitration. The Kenyan legal system has embraced these methods as viable alternatives to litigation, promoting their use in both civil and commercial disputes. Various laws and regulations, such as the Arbitration Act and the Mediation Accreditation Regulations, provide a legal framework for conducting arbitration and mediation processes in the country.

Dispute resolution practitioners in Kenya play a vital role in assisting parties in selecting the most appropriate method for resolving their conflicts. They provide guidance, facilitate discussions, and ensure a fair and efficient process. In some cases, specialized dispute resolution institutions, such as the Nairobi Centre for International Arbitration, provide facilities and rules for conducting arbitration proceedings.

Effective dispute resolution mechanisms contribute to reducing the burden on courts, promoting timely resolution of disputes, and fostering amicable relationships between parties. They offer flexibility, confidentiality, and the opportunity for parties to have more control over the outcome.

In summary, dispute resolution in Kenya encompasses both adjudicative and consensual processes. Adjudicative processes, such as litigation and arbitration, involve an independent third party rendering a binding decision. Consensual processes, such as mediation, conciliation, or negotiation, aim to facilitate agreements reached by the parties themselves, often with the assistance of a neutral facilitator. The Kenyan legal system recognizes and supports these processes, promoting their use as effective alternatives to traditional litigation.