GROUP 16 GROUP WORK (REGULAR DAY)

LEGAL SYSTEMS AND METHODS

Members
1. Gitiri Kiky Mumbi G34/3478/2022 - Group Leader
2. Mike Kibe G34/3394/2022 - Group Secretary
3. Kelvin Wairimu G34/3492/2022
4. Vanilsteroy Obare G34/3400/2022
5. Faith Ngure G34/3464/2022
6. Casey Osero G34/3479/2022
7. Ivy Kathure G34/3481/2022
8. Crispin Ngunya Wachira G34/3398/2022
9. Sheila Blessed Magoma G34/3312/2022
10. Hargine Mandere G34/3404/2022
11. Lincoln Ngari G34/3395/2022
12. Maxwell Karanja G34/3403/2022

Section one
HOW THE GROUP CARRIED OUT THE ASSIGNMENT
Immediately after the assignment was given, the assignment was sent to the
official Group 16 Whatsapp group. Next, the group leader discussed with the Group 13
Group leader on how the Alternative dispute resolution methods would be divided
between the two groups.
The next step was to fix meeting dates for the group, these meetings were held
via zoom call set up by the group leader and were attended by all the group members.
In total 3, one hour meetings were held. The first meeting was held on 20th December
2022 at 11am. This meeting was useful as it allowed us to get an overview of the
assignment and to get the ball rolling. In this meeting, all the ADR mechanisms that
were to be done by our group members were discussed.
The next meeting was held on 21st December 2022 at 11am in which the group
went in depth about these ADR mechanisms. This discussion was an open floor
discussion in which every member shared what they thought of these various ADR
mechanisms and their potential advantages and disadvantages. Once we had
exhaustively done this, we further divided the group into 3 in which the different sub
groups were to prepare a written document based on the discussion that had happened.
This various written documents were compiled by the group leader and this paved the
way for the third meeting.
The next meeting was held on 29th December at 11 am in which these various
groups gave a presentation on their various sections and the other group members
were able to give their 2 cents on the various parts. Once it had exhaustively been done
the document was submitted to the Group Secretary who prepared the PowerPoint
slides
Section Two - Content
ALTERNATIVE DISPUTE RESOLUTION.
Overview of Alternative dispute resolution
 Alternative dispute resolution (ADR) refers to any process designed for the
resolution of disputes without having to go through Law courts or litigation. ADR has
been put forth as one of the best ways of ensuring that people have access to justice
especially in places where Litigation is impractical. This enables parties to use methods
other than litigation (which can be costly and time consuming) in dispute resolution.
Most of these methods include using a third party such as a mediator who is able to
help the parties reach an agreement. These processes include but are not limited to
negotiation, enquiry, mediation, conciliation, expert determination, arbitration and
traditional dispute resolution mechanisms.3 Other mechanisms would include dispute
prevention, adjudication, expedited arbitration, hybrid between mediation and arbitration
(Medarb) and hybrid between arbitration and mediation (Arbmed). Parties can use these
methods in isolation or together in order to suit the needs of the situation.

ADR In Pre Colonial Kenya

In pre colonial Kenya, most communities did not have a formal structure of
dispute resolution. Most of the disputes would be solved either through negotiations
between disputants, mediation or arbitration. These methods were preferred as they
facilitated cohesion and harmony in the society and thus restoration of pre-dispute
cordiality.
ADR In Post-Colonial Africa
The arrival of the British into East Africa and the declaration of the country as
British Protectorate marked the beginning of the common courts into East Africa. This
also was pivotal as it marked the change from Traditional systems of dispute resolution
to the more formal court system introduced by the British. African customary law was
set aside and was labeled uncivilized and primitive. This led to its restriction using
repugnancy clauses which diminished its usage even further. This thus put litigation on
a pedestal and this has persisted even into the present day Kenyan Dispute resolution
scene. Due to the fashion of litigation, it being the most common form of dispute
resolution has caused a lot of Kenyans to lack access to justice. This is mostly because
of the large expenses during the course of litigation. Litigation can also be very time
consuming and the judgment doesn’t always ensure the restoration of relationships
post-dispute.
This therefore speaks to the importance of Alternative Dispute resolution
methods which has various benefits such as :

● Quicker dispute resolution

● Saving the time of federal employees such as attorneys
● Less time spent by the parties under the cloud of pending litigation
● Creative solutions brought by the parties
● A voluntary relationship between the parties which is more durable
VARIOUS METHODS OF ADR
NEGOTIATION.
Negotiation is the process of communicating back and forth to reach a decision
where there are some opposing interests. It is a basic means to get what you
want from others.
Any method of negotiation is judged by three criteria;
1. Does it produce a wise agreement?
2. Is it efficient?
3. Does it improve or at least not damage the relationship between the parties?

Methods of negotiation
There are three styles of negotiation namely: soft negotiation, hard negotiation
and principled negotiation.

1.Soft negotiation
The participants in soft negotiation are friends. The goal is to reach an
agreement while trying to avoid further conflict. The participants often end up
feeling bitter and exploited since they yield to pressure and they accept one-
sided losses to reach an agreement.

2.Hard negotiation
The participants in hard negotiation are adversaries. The end goal is
victory hence it exhausts people and destroys relationships. The participants
apply pressure and try to win a contest of wills.

3.Principled negotiation
It is comprised of 3 stages:
● Analysis – Diagnose the situation at hand.
● Planning – Generate ideas and decide a strategy to tackle the situation.
● Discussion – Communication with the other party(s).

Basic Points of Principled Negotiations.

People.
Separate the people from the problem. Keep your ego and emotions aside and
the participants should come to see themselves as working side by side.
Most common problems with people are: perception, emotions, communication
and relationship.
Interests.
Focus on the interests of the party(s) and not the positions. The objective is to
satisfy the underlying interests. A position may obscure what you really want and
compromising is not likely to address the underlying issues.
Options.
Generate a variety of possibilities before deciding what to do. Having a lot at
stake and searching for the one right solution. Create an opportunity to think of a
wide range of solutions.
Criteria.
Insist on the results to be based on some objective standard.

Positional Bargaining.
 Most depend on taking and giving up a sequence of positions. Taking tells
the other side what you want and serves as an anchor and will produce an
acceptable agreement. However, it fails to meet the basic criteria of a wise
agreement reached efficiently and amicably.

Qualities of a negotiator.
He/she must have;
1. Preparing and planning 6. Integrity.
skills. 7. Ability to persuade others.
2. Knowledge of subject 8. Judgment and general
matter being negotiated. intelligence.
3. Ability to think clearly and 9. Ability to persuade others.
rapidly under pressure and 10. Patience.
uncertainty. 11. Decisiveness
4. Flexible. 12. Listening skills
5. Ability to express thoughts
verbally.

Process of Negotiation.
1. Prepare, probe and propose.
The prepare, probe and propose stage involves researching pertinent information
as well as analyzing all the data you collect to determine its utility.
2. Define ground rules and exchange information.
Your primary focus is to establish the terms of the negotiation as well as
exchange information to improve the chances of successful negotiation.

3. Clarification.
The opportunity to seek any necessary clarifications from your opposition
involving the issue itself, other parties with stake in the negotiations, the evidence
provided, or even what may constitute a mutually agreeable outcome.

4. Bargaining and problem solving.

This process can be delicate, and in difficult negotiations, you must sometimes
move back a step to solve the problem until all parties are comfortable. During
this stage, each side will lay out their concerns as well as their perceived
solutions.

5. Conclude and Implement.

This stage can involve signing contracts or legally enforcing any other terms laid
out during the negotiation process. Follow-up is crucial, ensuring that
implementation brings with it the desired effects for both parties.

Sources of negotiating power

Negotiating power comes from:
● Developing a good relationship with the other party.
● Understanding the interests of each party.
 ● Using external standards of legitimacy to reach a decision.
CONCILIATION
It is one of the many methods of civil dispute outside the court. Here, a
third party (A Conciliator) restores the damaged relationship between disputing
parties by bringing them together with the hope of reaching an amicable dispute
settlement. According to Halsbury laws of England, it describes it as “A process
of persuading the parties to reach an agreement”. It should be noted however
that the conciliator has no authority to impose his/her decision on the disputing
parties. Furthermore, it is only possible with civil disputes, not criminal disputes.
Steps in the process of conciliation
1. Appointing a conciliator –
Parties will choose an experienced,
impartial, independent and professional conciliator depending on the
nature of the dispute. Some of the roles of the conciliator include: to
lower tension, improve communication, explore potential solutions
and bring about a negotiated settlement.

2. Conciliation process :
a.) Conciliator’s opening statements then followed by the parties’
statements.
b.) Joint exploratory session – here the conciliator takes an active role,
initiating and developing a positive discussion, clarifying misunderstandings
and creating trust ...ultimately creating a congenial atmosphere necessary
for dispute resolution. The conciliator also plays an evaluative role by
making parties understand the merits and demerits of their case and
thereby leading them to a mutually acceptable situation. It is also at this
point that the conciliator clarifies the interests of both parties.
c.) Settlement - The parties shall consider proposals made by the
conciliator and shall upon discussion arrive at a final agreement which shall
be put down in writing and shall be binding on the parties and therefore
enforceable. In the absence of a settlement, the conciliation shall be
 adjourned or terminated.
Advantages.
● Affordability. Since the process is administered by parties after mutual
agreement, they decide on the most affordable way to go about it.
● Convenient. It is time, and place convenient as both parties decide on where and
when to hold the meeting.
● Confidentiality. Using this method both parties are able to decide who knowns
the details if their affair as even the conciliator is a mutually agreed party.
● Enforceability. Conciliation is a legally accepted method of dispute resolution
thus can be enforced when parties have had a disagreement and opt to use it.
● Low chances of appeal. This is because both parties are involved I the decision
making thus they are in almost all cases comfortable with the decisions made
and agreed upon.
● Amicability. Unlike other methods of dispute resolution, the parties involved
mostly still remain as acquaintances after the process is done.

Disadvantages.
● No legislation. This process does not necessarily have rules an regulations to
follow for its effectiveness thus changes with time.
● Lack of confidence. The general population lacks trust with the process as it has
not been used sufficient amount of times and proved its effectiveness.
● Least known. It is among the least known methods of dispute resolution thus not
much is developed about and does not appeal to many.
OTHER NOTABLE ADR MECHANISMS…

1. Early Neutral Evaluation

It is an advisory and evaluative form of dispute resolution. The parties present the case
to a third party, known as a neutral, who usually has expertise in the area of dispute.
The neutral provides an oral or written evaluation of the parties’ positions and best
estimate of the parties' likelihood of success if the dispute were to go to trial. The
evaluation made may be binding or non-binding. Most courts require early neutral
evaluation especially in disputes involving factual and technical issues that call for
expert evaluation. There are several steps undertaken in the process of early neutral
evaluation:

a. Appointment of an evaluator
b. Preparation of neutral evaluation
c. The evaluators opening statement
d. Parties' presentation
e. The evaluators opinion
 2. Convening
This method of dispute resolution is majorly relevant where there are
multiplicities of suits relating to the same course of action. It identifies issues and
individuals with interest in specific controversy. The conflicting parties are brought
together by a third party know as a convener, who guides them in negotiating an
acceptable solution. This technique is also highly recommended where the identity of
the affected parties and the nature of the issues at hand are uncertain.

3. Adjudication

Adjudication is an alternative dispute resolution method which is mainly applied

in the construction industry to solve simple disputes within brief periods and in an
inexpensive and flexible manner.

It involves an impartial and neutral third party who is relied upon to make a
decision, which is binding, in a constrained time period especially if the project is still
ongoing.

The advantages of adjudication are as follows:

● It is cost effective and time-saving.

● It preserves business relations between the subcontractors.
● The outcomes more often than not are satisfactory and consensual.
The demerits of adjudication are that it is not suitable outside of the construction
industry. It is also prone to unfairness and error hence the adjudicator has to be very
carefully selected as their decision is binding unless the matter is referred to arbitration
or litigation.

4. Facilitation
Facilitation is a process in which the parties, with the assistance of a neutral
dispute resolution practitioner (the facilitator), identify problems to be solved, tasks to be
accomplished or disputed issues to be resolved. Facilitation may conclude at that point
or it may continue to assist the parties to develop options, consider alternatives and
endeavor to reach an agreement. The facilitator has no advisory or determinative role
on the content of the matters discussed or the outcome of the process but may advise
on or determine the process of facilitation. The facilitator's focus is on the procedural
assistance to conflict resolution as compared to a mediator who is more likely to be
involved with substantive issues. Consequently, it is common for a mediator to become
a facilitator but not the reverse.

5. Fact finding or neutral fact finding.

 Fact-Finding refers to an alternative dispute resolution mechanism in which a
neutral third party examines documents and interviews witnesses to determine, as best
as is reasonably possible, what happened, so parties (and their attorneys, if they are
involved) can then determine the appropriate course of action. Unlike Arbitration, which
decides not only what happened but also the legal consequences of what happened,
Fact-Finding merely provides the party or parties an understanding of what at least one
neutral observer would conclude had occurred. The Fact-Finder’s job is to weigh the
relative credibility of the witnesses and documentary evidence, to reach a conclusion as
to what happened. It is then up to the party or parties to decide what, if any, legal
consequences arise from those facts. It succeeds when the opinion of the neutral
carries sufficient weight to move the parties away from impasse and it deals only with
questions of facts, not interpretation of law policy. The parties benefit by having the
facts collected and organized to facilitate negotiations.

6. Mediation-Arbitration.

Med-Arb is a combination of mediation and arbitration. This process involves the

same person acting both as a mediator in seeking to facilitate a settlement between the
parties, and as an arbitrator to determine the issues in dispute and issue a final and
binding award. Initially the neutral third party mediates the dispute until the parties reach
an impasse before issuing a binding or non-binding arbitration decision on the cause of
the impasse or any unresolved issue. The parties are the ones to agree whether it will
be the same person conducting both the mediation and arbitration process or not.

7. Mini-trial.

Mini trial is an alternative dispute resolution development that entails the

presentation of the case and evidence as in a regular trial by a fully informed
representative or expert from each side. However, the notable difference being that the
case is “tried” by the parties themselves using senior executive decision makers from
each side and not the court of law. Often, a neutral adviser—sometimes an expert in the
subject area—sits with management and conducts the hearing. Can be a retired judge
or a senior counsel. The mini-trial is used to narrow the gap between the parties’
perception of the dispute. More aware of the strengths and weaknesses of each side—
they try to negotiate a resolution of the problem. If unable to resolve they ask the neutral
advisor for advice then resume negotiations. This process is however best fit for
resolving large-scale disputes involving complex questions of mixed law and fact, such
as Product Liability, massive construction, and antitrust cases. This is because the cost
of presenting even summary evidence to senior executives is high.

Section 3

Various sources used

 This section outlines the various sources used by the group in order to come up
with this presentation

1. Alternative Dispute Resolution (ADR): Enhancing Access to Justice in

Kenya. Mbori Otieno
2. http://Kenyalaw.org
3. https://youtu.be/kD3JSikbJ0I
4. https://youtu.be/kD3JSikbJ0I
5. https://youtu.be/89BsNnyMXdU
6. https://www.google.com/url?sa=t&source=web&rct=j&url=https://
www.health.go.ke/wp-content/uploads/2015/11/GUIDELINES%2520FOR
%2520NEGOTATION%2520CONCILIATION%2520AND
%2520MEDIATION.pdf&ved=2ahUKEwi9naKKybf8AhUWEcAKHUw7AiE
QFnoECBcQAQ&usg=AOvVaw1VFbeBIAw5lwMmfDXPwo0z
7. Institutionalising Traditional Dispute Resolution Mechanisms and other
Community Justice Systems. Kariuki Muigua, Ph.D
8.
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.opm
.gov/policy-data-oversight/employee-relations/employee-rights-appeals/
alternative-dispute-resolution/handbook.pdf&ved=2ahUKEwjh7K-
hyrf8AhWYi1wKHd96BFwQFnoECAgQBg&usg=AOvVaw1byBMo_ZvMpN
1uPtGOnyKn
9. The Various Alternative Dispute Resolution (ADR) Mechanisms And
Access To Justice in Kenya. Allan Munyao Mukuki

END OF REPORT