TABLE OF CONTENTS

DISPUTE RESOLUTION MECHANISMS..........................................................................................................2

NEGOTIATION..............................................................................................................................................3
THE PROS.................................................................................................................................................3
THE CONS................................................................................................................................................4

ARBITRATION...............................................................................................................................................4
THE PROS.................................................................................................................................................4
THE CONS................................................................................................................................................4

CONCILIATION.............................................................................................................................................5
PROS........................................................................................................................................................5
CONS........................................................................................................................................................5

TRADITIONAL DISPUTE RESOLUTION MECHANISMS...................................................................................6

PROS........................................................................................................................................................6
CONS........................................................................................................................................................6

MEDIATION.................................................................................................................................................7
PROS........................................................................................................................................................7
CONS........................................................................................................................................................7

LITIGATION..................................................................................................................................................7
PROS........................................................................................................................................................7
CONS........................................................................................................................................................8

DIALOGUE....................................................................................................................................................8
PROS........................................................................................................................................................9
CONS........................................................................................................................................................9

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 DISPUTE RESOLUTION MECHANISMS

A dispute resolution mechanism is a well-structured process that addresses issues that arise
between two or more parties that are in disagreement or are in conflict .They are hence used for
dispute resolution in order to end the conflict at hand. There are various dispute resolution
mechanisms and each has its advantages and disadvantages as discussed below. The following
list depict extensively the various dispute resolution mechanisms that exist in the world today;

 Mediation
 Conciliation
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  Mediation
 Arbitration
 Litigation
 Negotiation
 Dialogue

ALTERNATIVE DISPUTES RESOLUTION MECHANIMS

Alternative Dispute Resolution (ADR) methods are an alternative option other than
using litigation which takes all the cases to court. Using ADR methods is seen to
be cost effective and time saving other than the most used court process is usually
slow and tedious.

Article 159 (2) (c) of the Kenyan Constitution 2010:

“Alternative forms of dispute resolution including reconciliation, mediation,

arbitration and traditional dispute resolution mechanisms shall be promoted,
subject to clause (3);”

Clause 3

Traditional dispute resolution mechanisms shall not be used in a way that—

a) contravenes the Bill of Rights;

b) is repugnant to justice and morality or results in outcomes that are repugnant
to justice or morality; or
c) Is inconsistent with this Constitution or any written law.

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Article 33 of the Charter of the United Nations

The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to

regional agencies or arrangements, or other peaceful means of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.

NEGOTIATION.

Negotiation involves two different parties meeting to identify and discuss issues at
hand so as to arrive at a mutually acceptable decision without the help of a third
party.it is generally non-binding and aims to assist parties in reaching an amicable
settlement through voluntary agreement. It is bilateral in nature

There exists a form of negotiation referred to as unassisted negotiation. The major

difference between normal negotiation and unassisted negotiation is the
involvement of lawyers unassisted negotiation is a type of negotiation where the
parties in conflict negotiate directly with one another. In formal negotiation, all
problems will be presented by the parties in conflict.

THE PROS.

1. It is flexible in that parties involved are free to run the negotiation process in
a way suitable for them and their needs. The resolution that will be reached
represents the opinion of the two parties that are in conflict.
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 2. Though it cannot guarantee a win –win situation, the possibility of a
successful outcome are very high as the parties employ an interest based
approach.
3. It is voluntary in that it is by choice, one can choose to accept the income or
reject it. The resolution reached is not binding to the parties compared to
other methods of conflict resolution.
4. It can enhance the relationship between the parties once an agreement has
been between them
5. It may be inequitable in that parties may be of negotiation can be less
expensive and may reduce delays as compared to other forms. This is
majorly brought about by the fact that the parties in conflict don’t spend any
amount of money to cater for the third party that will preside over the
resolution process
6.

THE CONS.

1. Unequal power and the weaker party (s) may be placed at a losing end.
2. It may be difficult for the parties to come to a reasonable conclusion as
they may not be able to realize what they stand to lose and what’s at
stake hence the importance of a third neutral party
3. No parties can be forced to remain and continue negotiating. Any party
can pull out at any time not minding the efforts and losses the other
party stands to go through.

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 ARBITRATION.
This is where a third party in a dispute is appointed by the parties or an appointing
authority to determine the dispute to give a final and binding award. The parties in
conflict submit a contract to an independent third party. Section 59 of the civil
procedure act provides that all references to arbitration by an order in a suit, and all
the proceedings there under, shall be governed in such a manner as may be
prescribed by rules.

THE PROS
1. The arbitrator can be selected on basis of substantive knowledge.
This is creates a sense of surety as the third party is usually a person
well equipped on the contentious issue
2. It is not necessary to hire a lawyer hence saves on expenses and in a
situation where there are proceedings they are shorter and less
expensive.
3. Less backlog than the courts as the third party handles your issue
more swiftly compared to the litigation process
4. Final decision binding or advisory depending on wishes of parties.
This creates a sense of finality as the parties have to adhere to the
resolution provided by the arbitrator
5. These type of conflict resolution has sense of formality, this creates a
sense of finality and compels the parties to adhere to the resolution
reached.

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THE CONS
1. Similar cases cannot be consolidated without the consent of the
parties
2. It is cumbersome and more formal as lawyers enter the practice of
arbitration applying delaying tactics and importation of complex
legal arguments and procedures into the process.
3. The right of appeal is limited as the third party gives the final
solution of the dispute. Parties not satisfied with the decision of the
arbitrator have chance to seek address
4. The outcome is uncertain and binding in arbitration. The parties in
conflict may not wholly express themselves therefore leaving critical
details that may be critical in finding the resolution
5. Confidentiality is not suitable for some disputes.
6. Success largely depends on the arbitrator as their decision is binding
no matter what the resolution is. The outcome of the case is hugely
dependent on the understanding of the arbitrator of the case

CONCILIATION.
Conciliation is a conflict resolution method that a neutral third-party hears both
sides and then issues a non-binding suggested resolution. It can also be defined as a
process in which a third party restores damaged relationships between disputing
parties by bringing them together, clarifying perceptions, and pointing out
misperceptions. The difference between mediation and conciliation is that the
conciliator, unlike the mediator who is supposed to be neutral, may or may not be
totally neutral to the interests of the parties. Successful conciliation reduces
tension, opens channels of communication and facilitates continued negotiations

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Commonly used in labor disputes: Section 47 of the Employment Act 50 provides
for complaints of summary dismissal or unfair termination. It is provided under
subsection 2 that; “A labor officer who is presented with a claim under this section
shall, after affording every opportunity to the employee and the employer to state
their case, recommend to the parties what in his opinion would be the best means
of settling the dispute in accordance with the provisions of section49 .”

PROS.
1. The conciliator is normally a legal expert in the disputed field therefore the
chances of a credible resolution being are higher.
2. The process is private so no risk of damage to reputation as some cases
usually attract large audiences which in turn tarnishes the names of the
persons in a dispute
3. The resolution brought about by the third party is non-binding so the parties
reserve the right to go to court if they are not happy with the outcome of the
resolution.
4. The process is flexible with a time and date set to suit the parties
5. Cheaper than taking the dispute to court as the parties in conflict agree to
have a conciliator who offers their opinion on the dispute
6. The process is informal so parties do not feel they are out of their comfort
zones thus they give a lot of useful information that may help settle the
dispute.

CONS
1. The process has a higher capability of escalating the problem than actually
solving the dispute in question as the resolution reached is not legally
binding
2. No decision is guaranteed at the end as the conciliator only gives their views
on a subject matter
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 3. The process could be considered too informal so parties may not take it
seriously hence not providing all the vital information required to end the
dispute.
.

TRADITIONAL DISPUTE RESOLUTION

MECHANISMS.

This type of conflict resolution involves the use of council of elders and consensus
approaches to solve disputes in society. There has been in existence since time
immemorial. Many communities around Kenya have applied this method for a
long period of time. The institution of wazee exists in almost every community in
Kenya. It is in ordinary the first point of call when any dispute arises in a
community and since most people Kenyans lives are closely linked to
environmental resources, it is not surprising that most of the issues the elders
deal with touch on the environment.

Article 159 of the Kenyan Constitution provides that;

Traditional dispute resolution mechanisms shall not be used in a way that—

a) contravenes the Bill of Rights;

b) is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality; or
c) Is inconsistent with this Constitution or any written law.

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This method of dispute resolutions uses frameworks that are pre-colonial and
culturally entrenched in our societies. They include negotiation, reconciliation, and
informal mediation, council of elders, local elders, and problem solving workshops
among others

PROS
1. Is much more flexible than litigation as the people charged with the
responsibility of may shift their decision any time they want.
2. This process is informal and voluntary process,the parties in conflict may
decide if they want the council of elders to aid them in coming up with the
solution
3. Fosters deeper connections between 2 parties given that they are bound by a
higher connection i.e. Tradition

CONS.
1. This process of conflict resolution has no distinct legal, policy or
institutional framework. All the proceedings will be determined by the party
in charge of the conflict resolution process
2. Issue with application if members of different traditions are in dispute. What
tradition ought we to apply then?
3. The decisions often reached after a councio of elders has preside over a
matter are usually made to the public .This puts the reputation of the parties
in conflict in danger
4. The powers of the council of elders in resolving disputes is restricted by the
constitution

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 MEDIATION

Mediation is a dynamic, structured, interactive process where a neutral third party

assists disputing parties in resolving conflict through use of specialized
communication and negotiation techniques. All parties are encouraged to actively
participate. The mediator uses a wide variety of techniques to guide the process in
that it focusses primarily on the needs, rights and interests of the parties and aims
to help them reach an agreement. Mediation is also evaluative in that the mediator
analyzes issues and relevant norms while refraining from providing prescriptive
advice to the parties. The process of mediation differs from the normal negotiation
in various ways, but most outstandingly mediation consists of a well-structured
timetable and dynamics which is not present in normal negotiations. There various
types of mediation that exist in the world today. These include;

Facilitative mediation-this type of mediation has been in existence since the end
of world war 2.Morever it is this type of mediation that is taught in schools. Here
the mediator comes up with a structure that helps the parties in conflict to come
to a mutual agreement.
Evaluative mediation-these method of mediation is majorly done by the judges. In
this type of mediation, the mediator predicts what the courts would have decided
and what the jury is likely to do. Evaluative mediators are concerned with the
legal rights in question rather than the interests of the parties involved.
Transformative mediation-this is the newest type of mediation which was brought
about by Folger and Bush in their book THE BOOK OF PROMISE in
1994.Transformative mediators meet the parties together ,since they can only
give each other recognition.

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PROS.

1. It is swift as it saves on money and time. This method of conflict resolution

helps the parties in conflict take their own responsibilities and the resolution
of disputes.
2. Relatively cheap compared to litigation, as it costs less to have an impartial
referee Allows for flexible decisions to made
3. It’s private and confidential as the parties in conflict are the ones that resolve
to come a solution. The third party only helps the parties in conflict to see
their flaws in the dispute

CONS.
1. Transformative and evaluative mediation methods put too much pressure on
the clients in disagreement. There are chances of not reaching an agreement
2. There are chances that a resolution is not reached since the mediator acts like
an impartial referee, the process of arriving at a resolution is left to the
parties in conflict.
3. It has no formal process, this gives room for formation of other disputes
since the parties in conflict are the ones charged with the responsibility of
coming up with a resolution to the dispute in question

LITIGATION

The civil procedure act facilitates the just, proportionate and affordable resolution
of the civil disputes governed by the act.

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Litigation as a form of dispute resolution is an adjudicative process in which a
judge or a jury determines the outcome. It’s a well-known form of conflict
resolution in the legal system where the disputing parties go to the court to have a
judge or a jury decide the matter for them.
The appropriate court must be chosen .The parties may have consented jurisdiction
elsewhere.

PROS.
1. It is necessary as it creates precedent that will prevent future disputes
from coming up. These precedents will also prevent persons who
commit similar offences from getting away
2. Secondly, used when parties are unable to reach an agreement through
negotiation or other means. This is majorly because litigation provides
a binding resolution that the parties must adhere to. Litigation is final
and there is no other form of conflict resolution that will be sort after
3. Thirdly, the court system is state funded hence the parties do not have
to pay the judge or jury. The case is managed and heard by a
professional judge, the court can provide the enforcement of its own
decision that becomes an order and also the formality of the
proceeding enhances the deliberateness and articulation of the legal
arguments
4. The other benefit of litigation is that the decision of a case has
precedential value to other potential litigants as it becomes part of the
common law of the jurisdiction where the court is located.
5. The threat of litigation induces the parties to seek a compromise
solution before heading to the courthouse.
6.

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CONS.

It being the most costly form of conflict resolution hence it’s advisable to solve
disputes with a form of alternate dispute resolution prior to it because of the
formalities and procedures.
1. The professional judge or jurors may lack any expertise about the industrial
standards. In most cases the quality of judges in lower courts may vary and
‘lack of the draw' plays a part.
Cases get limited attention in short intervals while the courts manage a heavy
workload, affecting the quality and prolong the process.
2. The parties involved must pay their own legal expenses so that the party
with the deeper pockets may outlast the other party forcing them to
submission.
3. The decisions made are not final but is subject to appeal to the same or a
higher court
4. The entire proceeding can cause emotional distress on the persons involved.

DIALOGUE

Dialogue is a way of resolving disputes without going to court, whereby the

conflicting parties take part in a conversation.

Discussion to resolve a problem Its goal is to develop joint approaches to conflict

resolution .Conflicting parties in Dialogue share their feelings and are open to
listen to the other parties' needs .It is recognized in the constitution as an

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alternative form of dispute resolution mechanism, under article (159) section
(3)clause(c).

PROS
1. It seeks to inform rather than persuade.

2. One is concerned not only with their own interests and position, but also the
other parties'.

3. Participants focus on their relationship with each other.

CONS
1. The parties may become defensive and reactive during discussion.

2. Understanding and trust may be lost between the conflicting parties during
discussions.

3. It can only be applicable when both parties are willing to converse and come up
with a solution.

CONCLUSION
In as much as all the alternative dispute mechanisms are effective, there are a that
are deemed to be better than others in fast and effective dispute resolution such as
mediation where the parties are able to come to a reasonable agreement or rather a
win-win situation .Arbitration is also factored in as a third party makes the decision
that he or she deems fit .These two methods are more appropriate as they are
mostly done outside the court hence avoids a string of procedure , in turn saving
time . They both involve different parties coming to an agreement that in most
cases benefits each party.

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