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Page1ALTERNATIVE DISPUTE RESOLUTIONGPR 3 12TAUGHT BY: MR OLOOFROM JANUARY 13TH2014Page2LECTURE 1: 13TH JANUARY 2014- 5.30-7 (LECTURE HALL B2)TOPIC 1: INTRODUCTION TO ADR


In Kenya the use of ADR is supported by Article 159 (2) and (3) of the Constitution.CHAPTER TEN-JUDICIARYPART I- JUDICIAL AUTHO...

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ALTERNATIVE DISPUTE RESOLUTION-GPR 312

ALTERNATIVE DISPUTE RESOLUTION

GPR 312

TAUGHT BY: MR.LEONARD OLOO

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FROM JANUARY 13TH 2014

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

ALTERNATIVE DISPUTE RESOLUTION-GPR 312 LECTURE 1: 13TH JANUARY 2014- 5.30-7.30PM (LECTURE HALL B2)

TOPIC 1: INTRODUCTION TO ADR   In Kenya the use of ADR is supported by Article 159 (2) and (3) of the Constitution. CHAPTER TEN-JUDICIARY PART I- JUDICIAL AUTHORITY AND LEGAL SYSTEM JUDICIAL AUTHORITY 159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles— (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted. (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.

 Basically the Article stipulates the principles of the court and states that courts should encourage the use of ADR including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.  There is a caveat for the use of traditional dispute resolution mechanisms in that they should not be repugnant to morality and justice and they should not be inconsistent with any other written law. (See Section 3 of the Judicature Act).  Article 48 also places a constitutional burden to the state to ensure that access to justice is available to all. Access to Justice. 48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

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THE WOOLF REPORT  This enquiry was headed by Lord Justice Woolf; it started deliberations in 1994 with an Interim Report being published in 1995 and the final report in 1996.  The interim report proposed among other things encouraging the use of ADR.  The final Woolf Report: Access to Justice published in 1996 extended the ideas of the interim report and set out key objectives which were:

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 See also Article 33 of the UN CHARTER which provides for a conflict management mechanisms.  Naturally /logically courts can not deal with all manners of disputes. They have been burdened with litigation and we find that some issues which can be sorted by neighbors, churches, families and business associations end up in courts.

ALTERNATIVE DISPUTE RESOLUTION-GPR 312 i. ii. iii. iv.

Parties to be encouraged to explore alternatives to a court resolution of a dispute. A single set of rules governing proceedings in the High Court and the County Court. A shorter timetable for cases to reach court and for lengths of trials. More affordable litigation.

ENCOURAGING ADR  Although the constitution makes ADR as one of the principles of justice administration and courts should encourage the use of ADR; in recent past we have seen courts taking a tougher stance.  See Mutinda vs. IEBC Exparte Patel [2013]eKLR CASE 1 Mutinda vs. IEBC Exparte Patel [2013]eKLR Justice Odunga said this about ADR “ Courts and Tribunals cannot be said to promote ADR mechanisms when they readily entertain disputes that can be resolved in other legal forums”………Courts and Tribunals shall be guided by the principles of ADR as stipulated in Article 159 (2) of the constitution. Accordingly I agree that where there is an alternative remedy and procedure available for the resolution of the dispute that remedy ought to be pursued and procedure adhered to”  See also the English case of R (Cowl and Others) vs. Plymouth City Council [2002] Vol 1 WLR 803 CASE 2 R (Cowl and Others) vs. Plymouth City Council [2002] Vol 1 WLR 803 The Court of Appeal held that judicial review proceedings about the closure of an old people’s home should be allowed to go ahead if a significant part of the issues could be resolved by ADR.Lord Woolf giving judgment said “The importance of this appeal is that it illustrates that even in disputes between public authorities and members of the public for whom they are responsible sufficient attention is paid to the paramount importance of avoiding litigation whenever that is possible”. He further stated that if necessary the court might have hold on its own initiative an inter-parties hearing in which the parties could explain what steps they had taken to resolve the dispute without involvement of the court. This placed the lawyers on both sides under a heavy obligation to use ADR unless it really proved impossible. He said “Today sufficient should be known about ADR to make the failure to adopt particularly when public money was involved indefensible”.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

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CASE 3 Njangi vs. Supkem [Industrial Court Case No.416 of 2011] Justice L.Ndolo In this case one of the parties a religious body was wondering why the other party had rushed to court yet there were provisions to use ADR.

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 In industrial and labour matters one would be slapped with costs if they don’t avail themselves to ADR.  See Njangi vs. Supkem [Industrial Court Case No.416 of 2011]

ALTERNATIVE DISPUTE RESOLUTION-GPR 312  See also the English Case of Dunnett vs. Railtrack Plc (In Administration) [2002] 2 ALL ER 850 CASE 4 Dunnett vs. Railtrack Plc (In Administration) [2002] 2 ALL ER 850 In this case the court applied cost penalties for a failure to use ADR.What had happened was that the claimant had been granted leave to appeal ,but in giving leave the trial judge advised both parties that they should consider the use of ADR.The defendant declined to mediate .On the hearing of the appeal the claimants appeal was dismissed but the defendant was not awarded costs because of refusal to try ADR.Brooke J said “It is hoped that publicity will draw the attention of lawyers to their duties to further the overriding objective….and to the responsibility that, if they turn down out of hand the chance of ADR when suggested by the court as happened on this occasion they may face uncomfortable cost consequences”. This case was the first time that a successful party was refused costs because they declined mediate.  Courts can also order stay of proceedings in contractual cases where mandatory ADR terms have been provided.  See Cable & Wireless PLC vs. IBM United Kingdom Ltd [2002] EWHC 2059 (Comm) CASE 5 Cable & Wireless PLC vs. IBM United Kingdom Ltd [2002] EWHC 2059 (Comm) The judge held that contractual term providing for mandatory ADR in the event of a dispute was capable of being enforced by a stay of proceeding. However this could only happen if there was sufficient certainty as to what type of ADR procedure should be used. The court stressed the overriding objective of the Civil Procedure Rules and also the encouragement of ADR in case management.  This vey hard line use of ADR was considered as going beyond “encouraging ADR”.  Indeed Khawar Qureshi in an article “Doors of the High Courts are opened by fewer and fewer” The Times 27th April 2004 pointed out that it could violate Article 6 of the European Convention on Human Rights-the right to fair trial.  The matter was considered further by the courts in the conjoined appeals of Halsey vs Milton Keynes General NHS Trust and Steel vs Joy and Another [2004] EWCA Civ 576

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Lord Justice Lawton set out the relevant factors to be considered in the deciding whether to impose a costs penalty for refusal to try ADR.He started by pointing out that an order to deprive a successful party of some or all of his costs because that party had refused to agree to ADR was unsuccessful party to show why there should be a departure from the general rule. Relevant factors to be considered in such cases were: 1. The Nature of the Dispute: Some cases were unsuitable for ADR ;these included cases where there was a point of law or interpretation in issue, claims involving fraud and cases where there

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CASE 6 Halsey vs Milton Keynes General NHS Trust and Steel vs Joy and Another [2004] EWCA Civ 576 In this case the Law Society was joined as an interested party and put forward arguments on the point of when ADR should be used. The Court of Appeal stressed the distinction between encouraging mediation strongly and ordering it and said that:”…to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right to access to the courts”.

ALTERNATIVE DISPUTE RESOLUTION-GPR 312 was a claim for an injunction. 2. The Merits of the Case: Where a party reasonably believes that they have a watertight case then they may be justified in refusing to use ADR. 3. Previous Attempts to Settle by Other Methods: Although parties should realize that mediation often succeeded where other attempts to settle have failed. 4. The Cost of Mediation: This is particularly important where the amount being claimed is relatively small. 5. Delay: If mediation was suggested late in the case and would have the effect of delaying the trial then that was a good reason for refusing ADR. 6. Prospect of Success: Whether mediation had a reasonable prospect of success. So the present position is that the court will continue to strongly encourage the use of ADR while recognizing that there are circumstances in which refusal to attempt ADR is justified.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

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CRITICS OF ADR  There has been a strong critics of ADR based on Popularity vis-a-viz it’s Quality.  See the article by Owen Fiss “Against Settlement” 93 YALE 1073 (1984) for the full analysis.  But the following are some of the arguments against ADR 1. It promoted settlement at the expense of justice. 2. ADR could replace the rule of law with other non-legal values. 3. ADR can lead to an emergence of second class justice where new rights can not emerge.(For example without litigation in court there would be no Ryland vs. Fletcher

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WHAT IS ADR  This is a range of dispute resolution mechanisms, process, and procedures for resolution of disputes other than by litigation.  ADR is premised on the assumption that litigation is a primary method of resolving disputes in a given legal system.  Some writers have suggested that the use of the term “alternative” demeans ADR and have suggested the use of “appropriate”.  ADR can also be viewed as one of the many aspects of access to justice amongst others e.g. legal aid and advise, representative suit, small claims, procedural changes etc in the broader scheme of legal reforms within the legal system.  The rationale of using ADR is premised on Article 159 (2) of the Constitution.(See above).  ADR was brought about by the problems people faced with the court system.  Read the following articles to understand a) Roscoe Pound –Causes of Popular Dissatisfaction With The Administration of Justice (1906) Presented at the Annual Convention of the American Bar Association in 1906 b) Dickens Literature before the Judicature Act (Especially the Bleak House) –He has several quotes about the English legal system.  Later on in the 1960-70 ADR was promoted by the then Dean of Havard School of Law and the Head of the Supreme Court in the US.  One can also refer to the article by Derek C Bok “A flawed system of Law Practice and Training” he seems to suggest that the legal training and hence practice is geared towards litigation.  The ADR movement caught on and spread to other countries especially through donor led legal forums.

ALTERNATIVE DISPUTE RESOLUTION-GPR 312

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or Stevenson vs. Donohue which brought about the torts of trespass and negligence respectively). Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides "second-class justice." It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly "win" a case because of the cooperative nature of ADR. Similarly, critics believe that ADR encourages compromise. Compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputants. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny. This could be cause for concern in some cases. For example, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market. Seemingly lack of an Appeal process in ADR

 Therefore based on the above criticism some of the enthusiasms about ADR is more cautious and one can say that ADR is not appropriate where 1. There is an interpretation of the law required 2. Where the litigant wants public vindication 3. Where the case is precedent setting 4. Where there is articulation of civil and constitutional rights.

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WHY THE NEED FOR ADR  Conflict is as old as the human society.  There are several ways in which one would deal with conflict e.g. domination, cover-up, compromise and integration (accommodate each parties desires).  Conflict is a wide generic term while a dispute is a class of the conflict which manifests itself as distinct justiciable issue.  As lawyers we have to be careful not to rush to court to settle dispute at the expense of the wide conflict resolution.(E.g. you might rush to take to court some one only to realize that they give you 50% of the business).  As a result it is important to talk of conflict resolution as opposed to dispute settlement.  Why do people go to court? Considering that access to justice is a path with many barriers e.g a) Naming the item-That is to say that a particular item is injurious b) Blaming-Identify the grievance and identify who is responsible. c) Claiming- Confronting the wrong doer. d) Response –Of the wrong doer.  If a litigant has gone through the above process (steps) and feel that they can not ignore the matter.  The litigant has evaluated the economic cost and the cost in terms of time and actual cost and is willing to expend it.  It is the very nature of the court system that one is bound to face challenges (Jeremy Bentham)

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

ALTERNATIVE DISPUTE RESOLUTION-GPR 312 CHARACTERISTICS OF COURT SYSTEM 1. It is costly 2. Laced with formal and procedural technicalities 3. It is technical in nature hence the need of litigants to be presented. 4. It is a multi-layer system ( Trial or Hearing, Appeal and Counter Appeals) 5. It is a public forum 6. It is adversarial in nature 7. It has inherent delays 8. It is a win or lose situation no win-win 9. It has clear enforcement mechanisms 10.Court system is alien to Africans- (Customary was simple, speedy, fair and relevant to the needs of the community).The African system did not revolve around battle but rather aimed at resolving conflicts. ADVANTAGES OF COURT SYSTEM 1. Precedent: The doctrine of judicial precedent will be applied by the judge, which leads to a reasoned decision. 2. 3. 4. 5. 6. 7. 8.

Qualification: A legally qualified judge will decide the case. Hierachy: There is an appeal system if a party is unhappy with the decision of the trial judge. Legal Aid: is available for those on a low income. Enforceability: It is easier to enforce a court decree. Public: Leads to vindication New Rights: It leads to the development and recognition of new rights. Deterrence: It might lead to deterrence due to its public nature.

DISADVANTAGES OF THE COURT SYSTEM

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1. The civil courts are expensive. Many cases cost more than is being claimed. 2. There are delays in waiting for the trial, adjournments and to file appeals etc The delay can also be due to backlog of cases. 3. The procedures are complex, which requires the litigants to be represented 4. The courts are open to the public and press, which could lead to adverse publicity.(Absence of privacy) 5. The judge will not have technical expertise.e.g construction, pharmaceutical or oil and gas 6. The court service chooses the trial date. 7. Courts can be intimidating and make the litigants fumble even where they are right. 8. Courts are sometimes inaccessible e.g. in the Kenyan context there are places where there is only one court serving a vast area or population. 9. Courts can be influenced or corruptible 10.In courts one get technical justice instead of substantive justice.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED

ALTERNATIVE DISPUTE RESOLUTION-GPR 312 ADVANTAGES OF ADR  ADR can be used to supplement the court system and hence has the following advantages a) b) c) d) e) f)

Reduces backlog Reduces cost Reduce formality and complexity Increases satisfaction of the parties Allow for inclusion of expertise By pass courts especially if they are discredited.

 See the case of Republic v. Mohamed Abdow Mohamed Criminal Case 86 of 2011  CASE 7 Republic v. Mohamed Abdow Mohamed Criminal Case 86 of 2011 The accused was charged with murder but pleaded not guilty. On the hearing date the court was informed that the family of the deceased had written the Director of Public Prosecutions (DPP) requesting to have the murder charge withdrawn on account of a settlement reached between the families of the accused and the deceased respectively. Subsequently, counsel for the State on behalf of the DPP made an oral application to have the matter marked as settled, contending that the parties had submitted themselves to traditional and Islamic laws which provide as avenue for reconciliation. He cited Article 159 (1) of the Constitution which allowed the courts and tribunals to be guided by alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. Excerpt of the letter from the deceased family to the DPP: “…The two families have sat and some form of compensation has taken place wherein camels, goats and other traditional ornaments were paid to the aggrieved family. Actually one of the rituals that have been performed is said to have paid for blood of the deceased to his family as provided for under the Islamic Law and customs. These two families have performed the said rituals, the family of the deceased is satisfied that the offence committed has been fully compensated to them under the Islamic Laws and Customs applicable in such matters and in the foregoing circumstances, they do not wish to pursue the matter any further be it in court or any other forum… it’s worth noting that it goes against our tradition to...