ADR 101 PART 3: TYPES OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS

Last week, we talked about mediation and arbitration as part of our journey through Alternative Dispute Resolution (ADR). As I mentioned, this week we’re wrapping up the series with the final part, where I’ll be diving into negotiation, conciliation, and traditional dispute resolution mechanisms. 

1. NEGOTIATION 

Negotiation is an informal and voluntary way for two or more parties to solve a dispute by talking directly to each other. Since there’s no third party involved, it’s usually faster and more affordable. The main aim is for everyone to agree on a solution that works for both sides, through open discussion and compromise. Negotiation is applied in many areas of industry, from business transactions and workers strikes to court settlements and family disputes

Its characteristics include being informal, voluntary, and centered around the parties involved. It allows two or more sides to resolve disputes through open dialogue without a judge or arbitrator. The process is flexible and can adapt to changing situations, with parties free to adjust their approach as needed. Negotiation aims for a solution that meets the interests of everyone involved, though reaching an agreement may require compromise and isn’t always guaranteed. 

Some of the advantages include that it is cost-effective and time-saving, parties have more control over the process and outcome and it fosters open communication and collaboration, hence strengthening relationships between parties. However, it also has its disadvantages including parties may not be able to reach an agreement, agreements reached through negotiation may not be legally binding or easily enforceable and parties with greater power or resources may be able to exert more influence, potentially leading to unfair outcomes. 

2. CONCILIATION 

Conciliation is a method of dispute resolution where a neutral third party, known as the conciliator, helps those in conflict understand the issues, explore solutions, and work toward an agreement. The conciliator might have knowledge or experience in the area being discussed and can offer guidance or suggestions, but they don’t make a final decision or ruling. This process can be done voluntarily, be required by a contract, or be directed by a court or government body. 

In conciliation, the conciliator, plays a more active role than a mediator. While both aim to help people resolve disputes, a conciliator may also share expert knowledge, suggest possible solutions, and guide the parties toward an agreement. However, they don’t make decisions, take sides, or judge who is right or wrong. They simply support the process by offering helpful advice and keeping the conversation on track. Unlike mediation, which is mostly led by the parties, conciliation involves a bit more direction and input from the facilitator, especially when legal or technical issues are involved. 

Conciliation can be a good option if you need help with legal or technical issues, want guidance during the process, prefer to make the final decision together with the other party, or want advice based on the facts of your case. It’s also helpful if mediation didn’t lead to an agreement. Though, some of its disadvantages include the outcome of conciliation is not legally enforceable unless the parties agree to make it so, it may not always lead to a settlement and it's success hinges on both parties' willingness to participate in good faith and make concessions. 

3. TRADITIONAL DISPUTE RESOLUTION MECHANISMS (TDRMs) 

Traditional dispute resolution mechanisms are ways that local or rural communities have used to solve conflicts for many generations. These methods are often passed down over time and are deeply rooted in the culture and customs of the people. They may be called traditional, community-based, informal, customary, or indigenous systems, and are usually practiced outside the formal court system. In Kenya, traditional dispute resolution mechanisms have remained resilient despite the onslaught by the formal legal system.

Traditional dispute resolution methods (TDRMs) include things like negotiation, reconciliation, and mediation by community elders, along with other cultural practices. The Kenyan Constitution supports the use of TDRMs to help people access justice without going through the formal court system. These methods are often used in family, land, and business disputes, especially in rural areas. They are usually faster, cheaper, and more in line with local customs, and they help maintain relationships between the people involved. 

 

That brings us to the end of our breakdown of the various types of Alternative Dispute Resolution (ADR) currently used in Kenya. From mediation and arbitration to negotiation, conciliation, and traditional dispute resolution mechanisms, it’s clear that ADR provides flexible, affordable, and culturally rooted ways to resolve disputes outside of formal courts. 

In next week’s blog, I’ll be analyzing a landmark Supreme Court case, Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto & Another [2023] KESC 4. This case reshaped how matrimonial property is divided after divorce.

Stay tuned!

 

 

  

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases. (2018, August). Kenya Magistrates and Judges Association. 

Conciliation. (n.d.). Local Court of New South Wales. 

Characteristics of Negotiation Skills. (n.d.). Kapable Club.

“Negotiation in Alternative Dispute Resolution: Benefits & Process.” (n.d.). The Legal School.