ALTERNATIVE DISPUTE RESOLUTION NOTES

 *DISCLAIMER*

The notes below are adapted from the Kenyatta University,UoN and Moi  Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

Alternative Dispute Resolution  - Alternative to what?  Litigation or

Dispute resolution mechanisms that are alternative to litigation

Arbitration

Negotiation - meet and sit down and try and arrive at a conflict resolution without help of a third party

Mediation - facilitated negotiation there is a neutral third party who assists the parties in dispute resolution.

Other Books of reference

Getting to Yes by Roger Fisher and William Ury

Getting past NO - Negotiating with difficult people by William Ury

You can negotiate Anything by Herb Cohen

Mediation Why People fight and how to help them to stop by Michael Williams

Alternative Dispute Resolution refers to processes for resolving disputes other than litigation.  The distinction between the various types of dispute resolution processes, they can be arranged from the perspective of the level of control the disputants have over the process the more formal they get the less control the parties have.

Dispute Prevention

Negotiation

Mediation;

Hybrid between mediation and arbitration (Medarb)

Hybrid between arbitration and mediation (Arbmed)

Arbitration

Litigation or the trial itself.

There are other mechanisms or processes that exist; there are many trials and early neutral evaluations.  As we examine these processes the following features emerge

a.         The more formal the process, the higher the level of involvement by a third party in the process. Parties do not have a say in the process itself but they are bound by rules of procedure which they have to follow so compared to other processes like arbitration the element of party participation in arbitration is higher because the parties are at liberty to decide which rules of procedure to apply or the venue etc.

b.         As you approach the more formal processes like litigation, the process is increasingly formal from the dress that the parties wear, i.e. wigs an gowns in litigation or judicial process, manner of address, references to magistrates and Judges as my lord and your honour, the requirement as to pleadings and the format that they have to meet etc,

c.         The more formal the process, the more the danger or likelihood of potentially damaging the relationship between the disputants.  The decision that is reached after the result of a trial is an imposed decision and carries consequences for not complying with it.  Secondly the parties have not voluntarily submitted to that process. For example in a matrimonial dispute where a husband is forced to pay alimony to the wife, that kind of decision cannot endear the parties to each other, the more formal it is the likelihood of destroying the relationships.

d.         Arguably the more the formal the processes the more expensive it is, arguably because arbitration can be expensive as well, getting the disputes through the process is very expensive in terms of court fees, lawyers fees etc.

The standard practice in arbitration is that the arbitrator is paid on an hourly basis that is not to say that the arbitrator is not at liberty to value his services with that value of the dispute, he is at liberty to adopt a method of charging that best suits him.

e.         The process of litigation tends to take longer.  From commencement to the stage of the dispute resolution the amount of time taken is a lot longer.  Rules of procedure in litigation are rigid and they tend to make a case to last longer than it should.   There is also the backlog and the volume of work that the judiciary have to go through, it’s a lot.

f.          Finally the more formal the structure is, the higher the focus on the disputants’ rights as opposed to their interests.  The distinction between interests and rights is that interests of parties are usually in having a continuous relationship and when parties litigate their interests are destroyed by virtue of enforcing their legal rights.

Dispute Prevention

One mechanism for preventing disputes is by providing dispute resolution training.  Training that provides people with skills to prevent unnecessary disputes.  If you take a typical case of a husband and wife, how would training come in to prevent disputes arising?  Training maybe in better communication skills.

Second method of dispute resolution is partnering.  This requires disputants involved in a project to meet to discuss how to resolve any conflict which may arise.  If for instance there is a building contract that involves, employer, QS engineer building contractor etc. these people can meet at their own set of this project and decide that should conflict arise we will deal with it in this fashion that is partnering.  They can agree for instance that the decision of the architect will be the final decision.

The other form of dispute prevention is systems design which involves determining in advance what process would be used for handling conflicts which arise.

NEGOTIATION

Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution.  In a negotiation the disputants may represent themselves or they may be represented by agents and whatever the case, whether they are represented or not represented, they have control over the negotiation process.  When attempts are made to settle matters out of court involves negotiations

There are two extreme styles of negotiating. there is what is referred to as the competitive bargaining style and there is the co-operative bargaining style or hard bargaining and soft negotiating. 

The competitive negotiators are so concerned, with the substantive results, that they advocate extreme positions.  They create false issues, they mislead the other negotiator, they even bluff to gain advantage.  It is rare that they make concessions and if they do, they do so arguably, they may even intimidate the other negotiator. 

Cooperative negotiators are more interested in developing a relationship based on trust and cooperation they are therefore more prepared to make concessions on substantive issues in order to preserve that relationship.

Is negotiation a dispute resolution mechanism that can be applied in all kinds of situations?  Are there disputes that will not be necessarily resolved by negotiations?  There are certain disputes that negotiations would not perhaps assist.

In as far as hard bargaining is concerned, the perceived advantages would be

The hard negotiator is likely to get a better substantive especially in circumstances where such a negotiator is negotiating with a co-operative negotiator;

If a negotiator is a professional negotiator i.e. one who is called upon to negotiate on behalf of parties, he is likely to develop a reputation which will be useful in future negotiations;

The competitive negotiator is not open to easy manipulation;

A negotiator of that style is also likely to take initiative and to take a lead role in negotiations;

Disadvantages

The solution that comes out of such hard negotiations is likely to be a fragile one and therefore not long lasting so the other party is likely to come out of the negotiations feeling like maybe they gave too much and this may create ill feelings;

The competitive or hard negotiator may by reason of his approach fail to take an opportunity to reach a good deal because of the attitude that he must have his way and a good deal may be put on the table which he does not look at as he does not want to compromise.bbb

It may harm the relationship; it may also create misunderstanding by the fact that the interests of the party maybe compromised.

The competitive bargainer or negotiator is unlikely to be aligned to the concerns of the other party because the emphasis is no compromise.

SOFT NEGOTIATING STYLE

ADVANTAGES

Sustaining relationships or good long term relationships;

A deal or compromise will be reached when there is a deal to be made;

From the perspective of a professional negotiator, it is more likely that people will want to deal with you.

A compromise is likely to be reached sooner and to work quickly either to agree or disagree.

DISADVANTAGES

A good deal may be lost or the opportunity for a good deal may be lost because the negotiator by the end of the process may feel that they give more than they should have;

There is the possibility of manipulation by the other party.

The negotiator may be taken advantage of by the other party;

The party may want to get out of the deal later so he may feel sorry and try to get out of the deal.

In the case of a professional negotiator, a cooperative negotiator may not get a very good name e.g. compromises too much which may not be good for business.

In each of these two styles and based on the mentioned disadvantages, the negotiators are more focussed on their respective positions than with their interests and to try and reap the advantages of both the cooperative and competitive bargaining style, Roger Fisher and William Ury came up with a project at Harvard Law School and developed what they referred to as principled negotiations.

Principled negotiations require negotiators to focus on the interests of each of the disputants with the goal of creating satisfactory options for resolution which may be assessed by objective criteria.

Principled negotiation seeks to take advantage of both cooperative and competitive styles and avoid the pitfalls or the disadvantages of the two styles.

MEDIATION:

Mediation is a non-binding process in which an impartial third party facilitates the negotiations process between the disputants and it is that impartial third party who is called the mediator.  The mediator has no decision making power, he has no decision making power and the parties maintain the control over the substantive outcome of the mediation.

However, the mediator with the assistance of the parties will control the process and he will with the consent of the parties set and enforce the ground rules for the mediation process.  If in the dispute the two examples that we have looked at we now bring in a third party as the mediator, he will probably get an overview from both parties as to what their contentions are.  He will then agree with the parties that each party will be given an opportunity to state their case, they could also agree that when one party is stating their case, the other party shall not interrupt.  The role of the mediator is not to impose his own solutions and not to even suggest solutions but that the solutions should be suggested and agreed upon by the parties themselves.

Story telling - the disputants communicate with the mediator to tell their story.  The mediator then assures them that he has heard the story by re stating what each party has told you and letting them state whether those are the facts as they have stated them.  You re narrate the story.  You may then ask them to suggest the way forward and both parties can state how they want to proceed.  Lay down the rules.

The mediator should not descend to the arena but should let the disputants decide how to conduct the negotiations.  

ARBITRATION AND MEDIATION

Arbitration is a process in which a third party neutral, or an odd number panel of neutrals render a decision based on the merits of the case.  The Hybrid of mediation or the hybrid between mediation and arbitration which is a very rare sort of scenario is that the third party neutral commences the process in the role of a mediator and if that does not yield or result in a resolutions the mediation ceases and the mediator assumes or becomes an arbitrator who then makes a binding decision.  In the arbitration mediation hybrid (arbmed) the disputants present their respective cases to the third party neutral who prepares or makes a decision, he does not however share that decision or release that decision to the parties but he keeps it away and then assumes the role of a mediator.  If a result of the mediation, the parties reach a resolution, he destroys his decision but if the mediation does not resolve in a resolution then he releases his decision to the parties.

OMBUDSMAN

An ombudsman is a person who investigates complaints and attempts to assist the disputants to reach a decision.  Usually this is an independent officer of the government or a public or quasi-public body.  An ombudsman can be classified as an alternative dispute resolution.