NCIA collaborates with LSK to sensitize members on the National ADR Policy

The Centre recently partnered with the Law Society of Kenya to sensitize members of the Society on the National Alternative Dispute Resolution (ADR) Policy and the progress made in bringing the policy to fruition, shedding light on the aspirations and contributions of the Centre and other stakeholders in shaping Kenya’s dispute resolution landscape. In her opening remarks, Ms. Kananu Mutea a member of the NCIA board of directors observed that Alternative Dispute Resolution (ADR) mechanisms have gained global recognition for providing efficient and cost-effective means of resolving disputes outside traditional court litigation. Kenya, recognizing the significance of ADR, has embarked on the development of a comprehensive National ADR policy. ‘’At the forefront of this initiative is the Nairobi Centre for International Arbitration, a key player in shaping the ADR landscape in Kenya’’ she noted. She observed that the inception of Kenya’s National ADR policy can be traced back to the need for a more streamlined and accessible dispute resolution mechanism.’’

The policy aims to promote ADR methods such as arbitration, mediation, conciliation, Adjudication, and Traditional Dispute Resolution Mechanisms as viable alternatives to litigation’ added Ms. Mutea. She noted that the development process involved extensive consultations with legal experts, practitioners, and stakeholders to ensure a holistic and inclusive approach. The primary objective of Kenya’s National ADR policy is to enhance access to justice by making dispute resolution more accessible to all segments of society. It is also aimed at promoting efficiency by streamlining the resolution process to reduce the backlog of cases in traditional courts. This will lead to fostering investor confidence and creating a business-friendly environment that provides efficient mechanisms for dispute resolution. ‘’The Nairobi Centre for International Arbitration has been a driving force in the formulation and implementation of Kenya’s National ADR policy.

As a government agency established under the Nairobi Centre for International Arbitration Act, the Centre has played a multifaceted role in shaping ADR in Kenya through policy formulation, capacity building, and Infrastructure Development with the Centre investing in state-of-the-art facilities to support ADR proceedings, providing a conducive environment for dispute resolution’’ added director Kananu in her remarks. The Centre aspires to position Kenya as a regional hub for ADR by attracting international cases and fostering economic growth through effective dispute resolution. Stakeholders including government agencies will play a crucial role in implementing the National ADR policy and supporting the Centre in achieving its objectives.

Legal practitioners, including lawyers, will be vital stakeholders, as they are parties to the ADR processes and contribute to shaping the legal landscape. The business community will also benefit from efficient dispute resolution thus enhancing investor confidence and contributing to economic development. As the National ADR policy gains momentum, there has been noticeable traction in the adoption of ADR methods. However, challenges such as low awareness, cultural perceptions, and resistance to change still pose hurdles to widespread acceptance. ‘’The development of Kenya’s National ADR policy, spearheaded by NCIA represents a significant step towards a more efficient and accessible justice system. The Centre’s multifaceted contributions, coupled with the collaboration of various stakeholders, showcase the commitment to creating a conducive environment for alternative dispute resolution in Kenya’’ noted Director Kananu. As the policy gains traction, it is crucial to address challenges and continually refine the ADR framework to meet the evolving needs of the legal landscape. ‘’As a legal fraternity, the engagement with LSK is significant in the understanding of the eventual commitment to fostering efficient, accessible, and fair dispute resolution mechanisms’ she noted. ‘’As legal professionals, I believe that we all understand the ever-evolving landscape of conflict resolution which provides an opportunity to offer our clients alternatives that are responsive to their unique needs. The alternative is that if we don’t, they will operate without us, and I dare say that some of them already are’ observed director Kananu. Ms. Kananu noted that if properly understood and well utilized, ADR stands at the forefront of modern legal practice. It represents an avenue to be creative and innovative in client-led solutions that are outside the practitioner’s control.

The methods available she noted include negotiation, mediation, arbitration, and conciliation. ‘’If properly utilized, they offer flexibility, confidentiality, and a more collaborative environment. This policy is a testament to our commitment to excellence in ADR services. The Nairobi Arbitration Centre is dedicated to promoting ADR as a viable and reliable option for resolving disputes, noted Ms. Kananu. She noted that the policy reflects the Centre’s belief that ADR offers swifter, more effective, and mutually beneficial resolutions. ‘’The Center has engaged with numerous stakeholders including the Law Society of Kenya and the Chartered Institute of Arbitrators and we believe that the policy is necessary to streamline and facilitate accessible ADR mechanisms’’ she added. ‘’We hope to promote ADR such as arbitration, mediation, conciliation, Adjudication, and traditional dispute resolution mechanisms as viable alternatives to litigation.

The National ADR policy is a product of extensive consultation with legal experts, practitioners, and stakeholders to develop a holistic and inclusive approach to ADR. Key objectives within the policy include enhancing access to justice, promoting efficiency, and fostering investor confidence. The specific contributions that the Centre has made to the policy include formulation through active participation, and capacity building through training which has enhanced overall competence and credibility of the ADR process. The Centre has good infrastructure including state-of-the-art facilities where parties can conduct proceedings and have meetings in a conducive environment. The Centre aspires to position Kenya as a regional hub of ADR to attract good talent that will handle national and international cases referred to it for resolution. The Center will continue working with stakeholders including legal practitioners, government agencies, and invariably the business community. The Center is creating a roster of ADR practitioners who hold the highest standards of professionalism and expertise. Training and submission of application forms will allow practitioners registration and appointment to resolve disputes when an opportunity arises In his presentation, the Registrar took members through the journey towards the development of the ADR policy. He started by explaining that the mandate was conferred on the Centre by the NCIA act sec 5(f) act no. 26 of 2013, together with other stakeholders to collaborate and develop the national policy on ADR. ‘’We developed a concept, did research on the state of ADR in the country, and embarked on a baseline survey by visiting five counties to collect their views’ he explained.

The objective was to understand the state of acceptance, availability, and access to ADR. It is through the survey that a zero draft of the survey was developed followed by two validation exercises. After the validation exercise, the Honorable Attorney General formed the national committee for the formulation of the ADR policy which was chaired by SC. John Ohaga with the committee coming up with an expert improved policy statement paper which was presented to the cabinet on 21st March 2023 and awaits parliamentary consideration and approval. Problems were identified in the survey including conceptual and definition challenges. The different definitions that were encountered represent a stakeholder view that needs to be addressed by the policy. The survey also identified unclear scope of ADR with the policy seeking to address the jurisdiction of ADR as a problem.

The other issue identified was the lack of a coherent and adequate legal and policy framework.’’ We are all very proud of the court-annexed mediation pilot project but one of the challenges we have often raised is we do not have a framework to anchor it upon, Of Course, the judiciary has made tremendous strides in ensuring that it continues, but there is need for a legislative framework to anchor the practice’’ noted Mr. Muiruri. He added that there is a lack of sectoral frameworks in ADR and that despite having different forms of ADR namely mediation, arbitration, adjudication, and conciliation, each of the fields appeared to be operating on their own with there being no framework to bring them together to speak to one another or to address things that are common to each of them or distinct to allow them to develop side by side. The other problem identified is inadequate institutional infrastructure namely NCIA, Ciarb, and Strathmore which participants in the survey felt were Nairobi-centric, he noted. The other issue identified was the inadequate development of codes of standards and lack of regulatory institution which has led to complaints about the practice, issues of integrity, and questions of honesty. He noted that some of the ways of bringing common standards will include coordination, effective regulation, and governance for there to be acceptance of ADR mechanisms.

Another problem identified by the policy includes inadequate coordination and linkage between actors especially between the formal justice system and ADR mechanisms with the Registrar posing the following questions,’’ Are they friends or enemies, do they supplement or complement one another, are they in competition, is it possible for both to coexist and what will be the points of convergence or variance? Is it possible for us to create structures that will enable for instance as we have the bar and the bench speaking together between the formal justice system and ADR mechanisms so that we can address concerns that traverse the divide so that for instance the judiciary can continue with the court-annexed mediation and mediation that is not court annexed? He continued ‘’Arbitration for instance on enforcement, how can it engage with the formal justice system with elements of support, for instance with enforcement as recognized in the policy, they need each other.

There needs to be a coordinated link between the actors that allows for us to caucus, discuss and debate together to deliver services to the public’ he added. The other issue identified was weak enforcement of ADR decisions, with mediation for example not having a very clear enforcement mechanism both for domestic and international disputes. He however noted that the committee of nations has responded to address international disputes with the Singapore convention. With the advent of the digital age, the Registrar observed that there was inadequate harnessing of technology for better ADR services was another issue identified. Inadequate research and modest development of ADR.’’ 5.3 million UK pounds is the amount the arbitral Centre in the UK generates for the economy, with Ksh. 1 billion being cases emanating from Kenya. The contracts of these cases are done here but when disputes arise, the appointment of legal services goes to the UK,’ he observed. NCIA Registrar Mr. Muiruri Ngugi making his presentation during the seminar. On his right are Directors Kananu and Mr. Nderitu. Another issue identified was center-based challenges which he noted are addressed by the policy. In conclusion, he noted that the policy had made proposals that deal with the meanings and definitions of key ADR terms, sought to address the scope in terms of jurisdiction, and made a proposal for the creation of an oversight ADR body known as the National Dispute Resolution Council (NDRC) an overarching body that shall oversee and deal with regulation and governance. There is also a proposal to have practice area committees which will be established under NDRC in collaboration with other non-state actors that will bring together the different practitioners as a field and later on as common practice area committees which shall be forming policy, guidelines, and standards in ADR that will be passed by NDRC. To address the issue of institutional framework, there is a proposal for the establishment of ADR centers to deal with decentralization, the establishment of a judiciary ADR center to provide information, and a framework of advice and enforcement within the judiciary to respond to the court-annexed processes.

The policy also proposes elements of recognition of enforcement of ADR decisions not just arbitration but others with weak structures. It has addressed the question of capacity building, dealing with training from the tertiary level, harnessing technology, and enhancing the uptake of ADR through research. On regulation, he noted that NDRC will be a hybrid of autonomous, self-regulation, institutional, and state regulation. He concluded by noting that moving forward, there was a development of a 5-year national action plan on how to implement the proposals, government to integrate ADR into the national budget cycle, develop an evaluation framework to review the policy progress, with the recent milestone being the cabinet approving the policy