A Review Of The Alternative Dispute Resolution Bill, 2019

  • Josephine Wairimu
  • 26 Oct, 2020
A Review Of The Alternative Dispute Resolution Bill, 2019

The Alternative Dispute Resolution Bill (2019) (the Bill) dated 14th August 2019, is a Senate Bill sponsored by nominated Senator Sylvia Kasanga. This Bill has gone through the first reading on 27th August 2019 and the second reading on 19th September 2019[1]. The purpose of this Bill is to provide for the settlement of specific civil disputes, especially disputes involving the national government, county governments or State organs by conciliation, mediation and traditional dispute resolution mechanism and to set out the guiding principles applicable to such processes. It is important to note that the Bill intends to regulate conciliation, mediation, traditional dispute resolution or any other mechanism of resolving disputes except arbitration. Furthermore, the Bill provides new statutory definitions of conciliation, mediation, traditional dispute resolution, and amending.

As discussed in an earlier article, the Mediation Bill 2020 has provided certain guidelines surrounding the process of Mediation, the guiding principles for mediation, and to regulate the training and practice of Mediation. However, while the Mediation Bill 2020 applies to the mediation in general, the ADR Bill, 2019 is specific in nature as it shall only apply to certain civil disputes, including a dispute where the National government, a county government, or a State organ is a party. Notwithstanding, there are certain areas of conflicts in the two Bills as they seek to regulate the same areas.

The salient provisions of the Bill are summarized below.

Objects and Application of the Act

The core object of the Bill is to guarantee access to justice as enshrined by Article 48 by giving effect to Article 159(2) (c) of the Constitution, thus creating effective mechanisms for amicable dispute resolution. The Bill facilitates access to justice by enhancing community and individual involvement in dispute resolution as well as fostering peace and cohesion.

If enacted, the Bill shall apply to certain civil disputes, including a dispute where the National government, a county government, or a State organ is a party. The Bill will, however, not apply in instances where:

  • disputes are subject to arbitration under the Arbitration Act;
  • disputes are subject to resolution by a tribunal established under written law which has exclusive jurisdiction;
  • election disputes and disputes involving the interpretation of the Constitution;
  • claims regarding the violation or infringement of the Bill of Rights; and
  • disputes regarding public interest involving environmental or occupational health and safety issues.

Guiding principles of alternative dispute resolution (ADR)

The Bill provides for ADR guiding principles that encompass the voluntary and confidential nature of the process, the competency and impartiality of the mediator, and the regard to the duration of time taken. This is similar to statutes governing the ADR (Arbitration Act, Civil Procedure Act, Nairobi Center for International Arbitration, Constitution of Kenya) and the Mediation Bill. Furthermore, parties are entitled to receive information, including the right to be informed of the existence of an ADR process. Parties should also be free to use more than one ADR mechanism in an attempt to resolve a dispute.

Accreditation and Registration of Conciliators and Mediators

Any person who wishes to practice as a mediator or conciliator, and meets the requirements set under Chapter 6 of the Constitution as well as education and professional requirements, is required to apply to the Alternative Dispute Resolution Committee (the Committee) for accreditation and registration of the applications is to be considered within 30 days of the date of application and make their decision within 7 days. Where an application is rejected, the Committee is mandated to provide their reasons for the rejection. Registration can be revoked or suspended if the mediator or conciliator fails to comply with the terms and conditions for registration, has been adjudged bankrupt, or have been found guilty for the breach of code of conduct. An aggrieved mediator or conciliator following the revocation or suspension can apply for review to the Committee and, if still dissatisfied, should appeal to the High Court. Furthermore, the Committee is required to publish a code of conduct. These provisions are similar to those in the Mediation Bill.

Modalities of Mediation or Conciliation

As per the Bill, a dispute may be referred to mediation or conciliation by the court in certain instances such as: it is a matter that provides for resolution through alternative dispute resolution, the law requires the dispute to be settled through alternative dispute resolution, the court is of the view that alternative dispute resolution will facilitate the resolution of the dispute, and a party to the dispute have consented to pursue the matter using these methods of dispute resolution. Parties can also voluntarily submit themselves to these disputes resolution methods.   However, a court cannot refer certain matter such as:  where there is no dispute between the parties requiring resolution through conciliation or mediation, the clause making provision for alternative dispute resolution of the agreement is void or inoperative, a matter has a substantial public interest, and previous attempts at determining the dispute through alternative dispute resolution have failed. Parties to either mediation or conciliation are required to cooperate with each other and the mediator or conciliator, participate in good faith and maintain confidentiality in order to resolve the dispute through ADR. The process is deemed as confidential and external parties may not attend except with express consent from the parties. The conduct of the process is at the discretion of the parties, including the determination of the date, time, and venue. Please note that the mediator or conciliator cannot act as arbitrator in the same matter unless with parties’ consent. The process of mediation or conciliation is similar to that listed in the Mediation Bill. Where the parties reach an agreement, the conciliator or mediator shall prepare a settlement agreement within three days of such agreement and will explain the contents to the parties and when they have agreed to the terms, they shall execute it. Upon the execution of a settlement agreement, it shall be binding on the parties.  

Traditional Dispute Resolution (TDR)

As discussed in a prior article, the Alternative Justice Systems Baseline Policy and Policy Framework look at Alternative Justice Systems (i.e. traditional, informal, and other mechanisms) as a means to facilitate speedy and cost-effective access to justice. However, Kenya has not yet developed a policy and legal framework to adopt and implement traditional justice mechanisms. This Bill would be a first attempt to regulate the TDR mechanisms.

The Bill requires that a traditional dispute resolver should be competent and acquainted with the customary law to be applied in resolving the dispute. In carrying out their duties, they shall be impartial and apply the rules of natural justice. The Committee may prepare and maintain a list of traditional dispute resolvers. A dispute may be referred to TDR by the court, and a party shall not be forced or coerced to submit to the traditional dispute resolution process. TDR can be considered void where the process contravenes the Constitution, a written law, or public policy.

The Bill provides that at the end of a successful TDR process, the resolver will prepare a binding settlement agreement for execution by the parties. This agreement will be submitted to the court and the parties. Where the TDR process is terminated, the resolver will within 7 days prepare a report and furnish it with the court and parties. As per the Bill, the settlement agreement need not be in writing except where it was referred by the court or at the request of the parties. 

Judicial Proceedings and ADR Processes

Similar to the Mediation Bill, Advocates will now be required to advise parties of considering ADR to resolve the dispute. At the time of filing a case, produce a certificate to that effect. A court may consider the fact that a party has considered or participated in ADR when making orders as to costs, case management, or such orders as the court determines. As such, this will reduce the caseload at the Courts and further bolstering ADR as a means of dispute resolution.  This referral acts as a stay of proceedings (i.e., suspending court proceedings temporarily pending the outcome of the mediation). The Bill also empowers parties to apply to the High Court for interim measures of protection (e.g., injunctions) or challenge jurisdiction, appointment, referral of a dispute, or the Settlement Agreement.

A settlement agreement in traditional dispute resolution is binding between the parties. Further, a settlement agreement may, for the purpose of record and enforcement, be registered at the court with jurisdiction or a court that referred the dispute to traditional dispute resolution.

Recognition and Enforcement of a Settlement Agreement

The Bill obligates advocates before initiating judicial proceedings, to advise their clients to consider resolving the dispute by way of alternative dispute resolution. Further, a party must file with the court an alternative dispute resolution certificate in the prescribed form to confirm that alternative dispute resolution has been considered before instituting a court case. This is similar to what the Mediation Bill provided.  According to the Bill, the Settlement Agreement shall be recognized as binding and upon application by a party through writing may be enforced or challenged where a party can prove incapacitation (of the opposing party), the invalidity of the Settlement Agreement due to fraud, bribery, corruption or undue influence, where this Settlement Agreement deals with matters outside the scope of the ADR process and irregularities in the appointment of a mediator or where the making of the settlement agreement was induced or affected by fraud, bribery, corruption or undue influence.  The High Court could also deny enforcement, where the subject-matter of the dispute is not capable of settlement by alternative dispute resolution under the law of Kenya, or the recognition or enforcement of the settlement agreement would be contrary to the public policy.

Suspension of Limitation of Actions Act

Parties may agree to suspend the running of the Limitations of Actions period from the date of commencement to the end of the ADR process. However, this does not give parties the right to pursue ADR for time-barred disputes. The importance of stopping the running of time is probably to give parties time to pursue justice, even when the mediation process has not yielded the desired results. 

Alternative Dispute Resolution Committee

The Bill, through amending section 59A of Civil Procedure Act, Cap 21, establishes the Alternative Dispute Resolution Committee, which will dissolve the Mediation Accreditation Committee established under section 59A of the Civil Procedure Act. The Committee is to develop and promote ADR through accreditation, capacity building, policy development, research/ education awareness, and professional development. The day to day management of the Committee will be run by the Alternative Dispute Resolution Registrar and deputy registrars.

Conclusion

The ADR Bill is a welcomed move towards the development of ADR in general. However, the introduction of other proposed statutes may lead to potential areas of conflicts as they seek to regulate the same processes. It is yet to be seen which Bill shall take precedence over the other. Furthermore, the proposed regulation of Traditional Justice Systems, may prove to be an arduous task due to the diverse cultures containing their unique traditional dispute resolution mechanisms. However, the promising Alternative Justice Systems Baseline Policy and Policy Framework will greatly assist in the official formalization and integration of the traditional and the informal and other methods of resolving disputes in our justice system.  



[1]Accessible at http://kenyalaw.org/kl/index.php?id=9129 (accessed on 13 October 2020)