An Appraisal of Mediation as Alternatwe Dispute Resolution in Kenya

ABSTRACT The purpose of this study was to appraise the different methods used in conflict resolution as opposed to litigation, and make recommendations to the Proposed Amendments to 1~ntroduce Alternative Dispute Resolution and Case Management in Kenya This study sought to assess the views on mediation as an alternative method to dispute resolution, and also to consider whether mediation should be adopted as an alternative dispute resolution in judicial proceedings. The research was a cross-sectional with both explanatory and descriptive approaches. The target population was the Judicial Officers; Administrators of institutions, local leader including faith based organizations and other citizens. The population of the study was 301 residents of Nairobi, Kenya. The study employed the purposive sampling of all groups because it was difficult to randomly sample public officials and the personnel involved in judiciary processes. The questionnaires were administered to the respondents by the help of trained research assistants. Data analysis method was based on qualitative and quantitative approach using Excel and Statistical Package for Social Sciences (SPSS) program. The results were presented in graphs, pie charts and frequency tables. The major finding in the study was that there were several alternative methods of dispute resolution. The long period of time that court cases took before their conclusion was majorl~ due to corruption, misconduct of the judges, involvement of judges in politics and abuse of office by judges, as well as fewer judges as compared to the many cases in court, lack of evidence, and the nature of the civil case. Implementation of mediation was more effective than litigation, especially due to its simplicity, less cost involved, less time consuming and also promoted peace. Lack of awareness on the proposal to amend the civil procedures rules to provide for mediation as dispute resolution mechanism, resulted into most opinions that mediation be made voluntary. Corruption, injustices and unfairness of the judges as well as lack of reforms in courts were the main consequences of dissatisfaction on the outcome of court cases. As a result, the dissatisfaction led to the recommendation for Alternative Dispute Resolution (ADR).

 TABLE OF CONTENTS

DECLARATION ..._..~....•.-.........—..•.......—....—•..-... ii

APROVAL ...-.- —— .._.iii

DEDICATION — ............. iv

ACKNOWLEDGEMENTS ._• ..._ ....... v

LIST OF FIGURES ._ .,..

ACRONYMS .._ ..._....... xi

ABSTRACT —— ...— ~ Xii

CHAPTER ONE — .. __. I

INTRODUCTION — I

1.1 Background Information I

1.2 Statement of the Problem 4

1.3 General Objective of the Study 5

1 1.? Specific Objectives 5

1.4 Hypothesis 5

1.5 Rationale of the Study 5

CHAPTER TWO .. 6

LITERATURE REVIEW 6

2.0 Introduction 6

2.1 Mediation 6

2.3 Dispute and Conflict 7

2.4 Mediation in Dispute Resolution and Management 13

CHAPTER THREE.......—.......——.~.-.-•17

STUDY METHODOLOGY..~.......17

3.0 Introduction 17

3.1 Study Design 17

3.2 Study Population 17

3.3 Sampling of Study Population 18

3.4 Data Collection 19

3.5 Data Analysis 19

3.6 Study Limitations 19

CHAPTER FOUR .. .. ..

DATA ANALYSIS AND INTERPRETATION .._ ...~.

4.0 Introduction 20

4.1 Socio-demographic 20

4.4.1 Dispute Resolution 30

CHAPTER FIVE 41

DISCUSSION, CONCLUSION AND RECOMMENDATIONS 41

5.0 Introduction 41

5.1 Discussion 41

5.2 The Views of Mediation as ADR 41

5.3 Adoption of Mediation as an Alternative Dispute Resolution for Judicial Proceedings.. 43

5.4 Conclusions

5.5 Recommendations 46

REFERENCES ...— 48

APPENDICES .. — —_ 51

APPENDIX A ~ _.. ..~ .....

QUESTIONNAIRE 51

APPENDIX B — _—....—— -—.