Last week on Wednesday, the Judiciary, in conjunction with the National Centre of International Arbitration and supported by the International Development Law Organisation (IDLO) held a “National ADR Stakeholder Forum” to which they invited around 80 people whom the organisers perceived to be key players in the ADR Industry (if such a thing exists). Around 50 attended.
I was there and found this a rather curious event on a number of levels.
First, it was never made remotely clear why ADR as a concept requires regulating. Indeed, what is it about Alternative Dispute Regulation, which is not a profession or an area of practice or even subject that one can specifically train in, that makes it amenable to an Act of Parliament? It would be akin to having an Act to regulate all professions that aren’t Law.
Consider this. Court based litigation is an adversarial process in which advocates representing each party, scrutinise evidence and make submissions to the decision maker who then declares a winner of the case. Arbitration is exactly the same. Mediation is completely different. Why then, is it convenient to lump arbitration and mediation together (the principal elements of so called ADR), for the purposes of legislation?
Second, and as if the foregoing wasn’t bad enough, the phrase ADR was being slavishly used even when interlocutors were clearly referring to arbitration or mediation or another ADR discipline. Given not only the differences in the disciplines but the fact that arbitration is already comprehensively regulated whilst mediation is not, the confusion in the room as to what it all meant was palpable. When ADR was referenced, arbitrators heard “arbitration”, mediators heard “mediation” etc.
Attendees were handed out a nineteen-page document detailing NCIA’s “Recommendations of the Baseline Survey Report”. This is full of the same tensions – writers being forced to refer to ADR when in context it was clear that they had one or another constituent process in mind. So disparate was the territory that one moment we are reading about international commercial disputes, the next about Alternative Justice Systems in rural areas where conventional mechanisms of criminal justice are not even engaged. Completely different scenarios involving completely different dispute resolution techniques, but all under the catch-all, ADR.
It was is if Lawrence Ngugi, NCIA Registrar/CEO had walked into the room with a big sack in which he declared that he had all the constituent components of ADR to discuss, but everyone could see that the sack was about to rupture, spraying dispute resolution techniques in every direction. Someone in a high position had decided that these creatures would all cuddle up together nicely and no-one was going to dare to tell the emperor the truth.
Also in Ngugi’s sack must have been negotiation, because as was made clear on the day, negotiation is an ADR process. What does this mean if I buy a car or a company and the deal goes sour? If I sit down with the other side, with or without lawyers, and we hammer out a solution on our own, is the State going to claim oversight of what we are doing? If we bring in a neutral party to assist us with our negotiations (a mediator), is this the point that the law is engaged? Either way, if we are not troubling the State’s mechanisms and resources to sort out our entirely private matters, what precisely has any of it got to do with the State?
My point is, if you are going to insist on dealing with the whole sweep of “ADR” together, from negotiation to arbitration, and all points in between, you’d better be pretty clear what it is about all the contents of the sack, that requires a collective approach.
Third, the driving force behind it all seemed to be NCIA – Ngugi was host. This was despite the fact that NCIA, as the name suggests is primarily about Arbitration. Let’s face it, they could have called it NCIAM or NCIADR but they didn’t. How many times have you read something in the media about NCIA promoting or being active in mediation or any other form of alternative dispute resolution?
But again, someone has decided that it is convenient to bolt mediation, and other forms of ADR, onto NCIA despite the fact that most of the issues on the table do NOT involve arbitration and are very much domestic rather than international. So the National Centre for International Arbitration is the body to lead on policy relating to domestic mediation, that to the best of my knowledge, never happens at their centre. Incidentally, if you go the the NCIA’s web page listing its Board of Directors and their profiles (https://www.ncia.or.ke/board-of-directors-2/) and search for “mediation” or “mediator”, you may be surprised to find rather a scarcity of real world experience in the practice of mediation.
Fourth, by the time the room broke into 3 groups of 15 or so people each, to discuss “policy issues and structure of the draft bill”, it was very clear that no-one really had any answers to the questions raised above. Or even very simple questions like – Is this about amending arbitration law or creating mediation law? But despite the total lack of consensus, the conclusion of the day was apparently to press ahead with developing the policy and, simultaneously, drafting “the Bill”, as Dr Charles Otieno, leader of the process, repeatedly called it. The good doctor told us that nothing has been decided and his job is simply to move forward reflecting what the consultees told him. Given that there was nothing close to a consensus in the room, not to mention the complete failure to address the “why are we regulating ADR” question, eyebrows were raised when he told is that he expects to have a draft policy and Bill in 90-120 days.
Justice Lee Muthoga, of the UN Criminal Tribunals parish and mediation training organisation DCRI, was vocal in his concern for the discrete requirements of mediation when it comes to regulation. He declared that his organisation is in the process of preparing their own draft Mediation Bill. Senator Mutula Kilonzo Jnr told us that something like five members of parliament had or were planning to submit private member’s Bills and word is that all over the mediation space, groups are working up their draft Bills. All a bit of a waste of time if the answer to the question has already been decided.
I have, I think, already made plain enough my scepticism that Government regulation will bring very much to assist the development of mediation in Kenya. However, a Mediation Act would have one particular benefit: the very passing of such an act would potentially raise the profile of mediation significantly and maybe, just maybe, encourage advocates to take mediation seriously as an alternative to litigation. But we could now be heading for the worst of all worlds. If the idea of an ADR Framework Act has already been decided in high places, will mediation regulation then be a subsidiary Regulation or just a Schedule to the Act? Either way, the single positive reason to have a Mediation Act may have been jettisoned.