Alternative Disputes Resolution (adr) Is No Longer An Option For Businesses.

  • Erastus Njaga
  • 14 Aug, 2020
Alternative Disputes Resolution (adr) Is No Longer An Option For Businesses.

When the history books will be updated, and I hope it will be in our lifetime; a significant portion will be for the year 2020.  The year 2020 has been full of unprecedented and mysterious events and circumstances that are far and beyond the fathom of we human beings.  Social distancing, wearing of masks and hand sanitizing have taken over our usual dialect. Worse is that  we can no longer  participate in events  so critical to us  like  worshiping our God, Allah, Jehovah, and all other names attributed to the  Deity in  the different places, visiting our friends and families, or even enjoying ourselves in bars and restaurants without the fear of contracting the “ Wuhan Virus.”

Every sphere of human activity has been significantly affected, and some sectors might not resuscitate even after mouth-to-mouth resuscitation by the various Government stimulus package. But one thing that has unequivocally manifested and reinforced itself is the dire need for abrupt incorporation of technology in our government operations, businesses, and to some extent, our human-to-human engagements such as how we do our shopping, how we do laundry at our homes. 

Notwithstanding, access to justice during this COVID era has been significantly hampered in Kenya and many other countries.  The right of access to justice has for eons been heralded as the cornerstone of any democratic country and the soul of any society that is guided by the rule of law. But the right of access to justice has been hugely limited during the COVID-19 pandemic owing to the closure of Courts. Indeed, the Kenyan courts were subject to closure for approximately 3 months since March 2020 ―with the impromptu cessation of business since re-opening in June 2020― which means that there is a gross delay in the administration of justice.

It is an undeniable reality that disputes are inevitable as long as humans continue interacting or living on this planet.  So when the disagreements arise, how they are handled determines the relationship of the disputants during and after the resolution process. Ideally, the leading model of resolving many disputes by individuals and businesses is through litigation. Subsequently, Courts are seen as the only place that can ensure the dispute is resolved and accordingly guarantee justice. However, the sheer skyrocketing number of cases filed in our courts, the understaffed judicial officers, and the hugely under-budgeted judiciary make the litigation process very lengthy. Statistically, in Kenya, about 50% of all court cases take more than 3  years, and 22% take more than 5 years, with the potential of appeals increasing these timelines. The ripple effect is that to have a  matter resolved in Kenya, it might take more than  7 years, even for a basic matter. The extended durations also bring in the issue of the costs where, in some instances, the legal costs have been high or even double the value of the subject matter.   The problem is exacerbated by the cumbersome legal nature of litigation, making it critical to have an advocate. Further, if you are someone in need of private, confidential and out of the glare of the public resolution of disputes, forget it if you are pursuing the litigation route.

Businesses comprise over 85%  as the critical parties in any disputes whether, in the financial services sector,  the insurance sector, the  ICT sector, the real estate, and any other business make them very prone to litigation either as the plaintiffs or the defendants. The ripple effect is that a business will have a backlog of disputes that are yet to be resolved some as old as 30 years in the court.  Couple this with the hefty legal fees to the advocates, the tainted business relationship and the negative publicity of a  court case to a company. The result will be a business that is not a hundred percent focused on the maximization of its set objectives. 

The only panacea to this is the Alternative Disputes Resolution that comprises Conciliation, Negotiation, Mediation and Arbitration. The alternative mode of dispute resolution is anchored in our constitution and further bolstered in the various statutes. A party in a desire to use the ADR should be confident that the resolution is legally enforceable.  ADR was certainly incorporated in our judicial system to fill in the gaps manifested by the litigation and offers parties a faster, cost-effective, private, confidential resolution of disputes that seeks to safeguards the parties' relationship. Therefore, businesses must adopt the ADR strategies in their resolution of disputes as they will be assured of an expeditious, cost-effective and resolution of disputes outside the glare of the public. ADR is not only beneficial to businesses for the above reasons, but the fact that technology can easily be integrated into the resolution processes negates the need for physical meetings. Therefore, it is the ideal mode of dispute resolution in these COVID pandemic times as it will ensure the provided guidelines are strictly followed.  

We must recognize the stroke of genius that inspired the invention of the Utatuzi Center. A web-based platform that links businesses to overly qualified, skilled and professional ADR personnel such as Mediators and Arbitrators - a panel of eminent professionals selected owing to their rich track record of resolving commercial and civil disputes.  Through the Utatuzi Center platform, businesses of various sectors and cadres are ensured that disputes arising from within or from external parties are resolved expeditiously, cost-effectively, and confidentially, thus retaining the mutual business relationships. Such a platform is the ideal tool in guaranteeing continued access of justice to various disputants despite the prevailing pandemic times. 

So, it is the time businesses, large, small or medium of various sectors, adopted the ADR strategies in their management and resolution of disputes. It is no longer an option but a critical component of the right to access justice.