NAME: EVANS MUIRURI MWANGI

REGISTRATION NUMBER: 1027447

FACULTY: LAW
COURSE TITLE: ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION
COURSE CODE: CLS 412
WORD COUNT: 1780 WORDS
COURSE INSTRUCTOR: MR AGAN WILLIAM
TASK: TAKE AWAY ASSIGNMENT
DATE OF SUBMISSION: 28-06-2019
1.A) Question
Choose anyone of the principle of arbitration?
NEUTRALITY AND EQUALITY
Neutrality is the state of not supporting or helping either side in a conflict or disagreement.
Equality is the state of being equal, especially in status, rights, or opportunity. Both of them
stand for impartiality or fairness. Impartiality means equal treatment of all rivals or disputants.
Neutrality and equality are inter-linked therefore conflicts have to be solved in consideration of
neutrality and equality. There can be no stability without equality it undermines the confidence
of the people in peace building process; and may not lead to sustainable peace. In all the
processes of solving a dispute using an alternative system other than the court the party that
carries out the function of the judge is the third party. In the process of arbitration, it calls for a
neutral arbitrator to guide the parties in solving their issues. The arbitrator is chosen by each
party member in the conflict. The chosen arbitrators, choose another arbitrator who is going to
take them through the process or guide them in the process. The arbitrator will act as an
independent personnel, in order for the subject matter to be solved. The arbitrator is the third
party and serves the purpose of a third party in a conflict between the parties that want to resolve
their issue without seeking the help of court. They prefer solving the matter privately, that which
is not open to everybody; that is one of its advantage to the parties. The third party has the
following powers in regard to the type of arbitration and alternative dispute resolution processes
he or she is using. They are the following:
 They have a duty to conduct fair and impartial hearings.
 To take all necessary actions to avoid delay in the disposition of proceedings.
 To maintain order and to meet the sixty day time frame.
 Reviews testimony and evidence presented by the disputed parties.
 He or she hears and resolves the dispute by issuing a decision depending ont the type of
alternative dispute resolution and give provisional relief.
 If the arbitration agreement provides that the Arbitration Act will apply then the
extensive powers given under the Act again will be available to the arbitrator.
 If the powers are stemming from the agreement of the parties conferring powers to the
arbitrator.
In decision making they include the stated below:
 Facilitative
 Advisory
 Determinative.

Facilitative

This process is where a third party assists the parties to a dispute to identify the disputed issues,
develop options, consider alternatives and try to reach an agreement about some issues or the
whole dispute.
Examples of facilitative processes include mediation, conciliation, facilitation and facilitated
negotiation.

Advisory

This process is where a third party considers and appraises the dispute and provides advice as to
the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these
may be achieved. Examples of advisory processes include: case appraisal, conciliation (where
advice is offered or used) and (early) neutral evaluation.

Determinative

This process is where a third party evaluates the dispute (which may include the hearing of
formal evidence from the parties) and makes a determination. Examples of determinative
processes include: expert determination and private judging.

Types of Alternative Dispute Resolution

Mediation, Conciliation, adjudication (private judging), Mediation Arbitration(Med Arb),

Negotiation, Ombudsman, Expert opinion
Mediation

Mediation is an Alternative Dispute Resolution process where an independent third party, the
mediator, assists the people in dispute to identify the disputed issues, develop options, consider
alternatives and try to reach an agreement. However, the mediator does not give their advice or
opinion about the issues or have any role in deciding the outcome of the mediation.

Role of the mediator

The mediator will:

 explain the mediation process and set the guidelines for how it will work
 ensure each person has a chance to talk, be heard and respond to the issues
 keep everyone focused on communicating and resolving the dispute
 ask questions to help people identify and communicate about what their goals and desires
are and why they feel that way
 help clarify the issues and suggest ways of discussing the dispute
 help the people in dispute develop options and consider whether possible solutions are
realistic
 try to assist the parties reach an agreement where appropriate and make sure everyone
understands any agreement reached
 refer you to other helpful services if required.

The mediator will not:

  take sides, make decisions or suggest solutions - this is for you and the other participants
to do

 tell you what you should agree to do - you decide what to do, including whether to stay at
mediation
 decide who is right or wrong - the focus is on finding a solution that everyone can live
with, not making a judgment
 give legal, financial or other expert advice - you can get advice before, during and after
mediation if you choose
 provide counselling - you can get counselling or other support before, during and after
mediation if you choose.

In Kenya 2007-2008 post-election violence we have the late Kofi Annan coming to Kenya to
solve the dispute between the two leaders opposition leader Raila Amolo Odinga and the third
president of the Republic of Kenya Emilio Mwai Kibaki. Due to their disagreement, it had torn
apart the country. Former UN General Secretary Kofi Annan who is from Ghana, came to
mediate between them. He was successful in doing so. Both of them formed a coalition
government in that, the post of Prime Minister was created. The score was settled and
everybody was happy. Then country returned to its normal business and peace prevailed.

How do I find a mediator?

There are a number of options for finding a mediator suitable for your dispute. For example, in
court annexed mediation, the mediation registry will usually have a list of mediators and will wait
for the parties to make a choice but in default, the court will assign a mediator to the parties.

Conciliation

Conciliation is an ADR process where an independent third party, the conciliator, helps people in
a dispute to identify the disputed issues, develop options, consider alternatives and try to reach
an agreement.

A conciliator may have professional expertise in the subject matter in dispute and will
generally provide advice about the issues and options for resolution. However, a conciliator will
not make a judgment or decision about the dispute.

The role of conciliators is similar to that of mediators except that the conciliator may also:

 have specialist knowledge and give you some legal information (example the conciliator
appointed by the Labour Commissioner in disputes between employers and the Union)
 suggest or give you and the other participants expert advice on the possible options for
sorting out the issues in your dispute
 actively encourage you and the other participants to reach an agreement.

The conciliator will not:

  take sides or make decisions
 tell you what decision to make, although they may make suggestions
 decide who is right or wrong
 provide counselling.

Negotiation

Negotiation describes any communication process between individuals that is intended to reach a
compromise or agreement to the satisfaction of both parties. ... They stress that the point of
negotiating is to reach agreement rather than to achieve victory
Conflict is a natural dynamic that arises when people’s interests, perceptions, goals, values or
approaches to problems differ and when one party feels that another is interfering with their ability
to attain a certain objective. It may occur between individuals or groups and range from minor
disagreements to major disputes or even war.

To help prevent and resolve conflict, communicate effectively and speak up early and often; use
“I” language to reduce defensiveness; listen first to show respect and to encourage others to listen
to you; be sensitive to culture, gender and religious differences; manage expectations by letting
others know what to expect, especially when you are no longer able to carry out your roles and
responsibilities; anticipate conflicts and focus on others.3 Organizations should create and
maintain a culture of openness, align organizational systems and offer conflict management and
negotiation training for individuals and teams. Leaders should be effective role models for
teamwork and constructive feedback by involving employees in decisions that affect them.

Despite your best efforts, conflicts and disputes can still arise. If you cannot prevent them, apply
your effective persuasion and negotiation skills. If all else fails, consider involving a third party
(e.g. a mediator, trust catalyst or consultant). The costly legal route should only be used as a very
last resort.

Role of the third party,

 ensure each person has a chance to talk, be heard and respond to the issues
 keep everyone focused on communicating and resolving the dispute
 ask questions to help people identify and communicate about what their goals and desires
are and why they feel that way
 help clarify the issues and suggest ways of discussing the dispute
 help the people in dispute develop options and consider whether possible solutions are
realistic
 try to assist the parties reach an agreement where appropriate and make sure everyone
understands any agreement reached

Conclusion
For the dispute to be solved other than in litigation is by employing Alternative Dispute Resolution.
And in Alternative Dispute Resolution Mechanism a third party must be there to enable the parties
to solve their issues. And to do so, the third party has to be neutral and independent, that is:

 being impartial
 being one without misconduct reputation

This to avoid instances where the award given is take to court for the review that the third party
member had misconducted him or herself in rendering the award. This will of course lead to
the award made not binding the parties and making the dispute not to be solved.

All in all, the act of being neutral, independent brings about confidentiality, trust and believe
in the system. In that all dispute will be able to be solved and people would be agreeing on the
decision made or the award given. People will be willing to use the Alternative Dispute
mechanisms rather than the court which is expensive, time consuming, has no privacy(open
court). At all times we should uphold people with integrity to be in all offices dealing with
matters concerning disputes. Even in our constitution 2010 we have chapter six elaborating
more on matters to do with integrity and leadership. If the person handling our matters have
integrity it means they are of neutrality and equality.
Reference
 Arusha report Maasai Dispute Resolution
 Types of Alternative Dispute Resolution(Mr. Agan William notes)
 http://www.lalive.ch/data/publications/43_-
_On_the_Neutrality_of_the_Arbitrator_and_of_the_Place_of_Arbitration_Recueil_de_tr
avaux_suisses_sur_l'arbitrage_international.pdf