prior cordial relationship. The 3rd party,
a Conciliator separately discusses the
dispute with each party, then prepares a
solution based on what he considers to be
just and optimal compromise. Conciliation
is used to restore the parties to the pre-
dispute relationship after which other
ADR technique may be applied. The
Conciliator is the Architect and designer
of the solution.
Adjudication
Adjudication is defined as a dispute
settlement mechanism where an impartial
3rd party (Adjudicator) makes a fair,
rapid and inexpensive decision on a given
dispute arising from a construction
project. Adjudication is thus limited
and appropriate to unique needs in
construction industry, which usually
involves Engineering and civil contracts.
The adjudicators decision operates as
binding order unless the matter is referred
to Arbitration or litigation.
ADR mechanisms are unique since they
are community oriented and focus on the
interest and needs of the parties to the
conflict as opposed to positions which is
emphasized in litigation.
Conclusion
Generally, the society appreciates the
contribution of ADR in increasing
democratization and stability of institutions
and the state. ADR development should
be geared towards citizen participation
and therefore the need to remove time and
bureaucratic burdens placed on traditional
court systems.
Public officers should popularize the practice
of out court approaches in conflict resolution
to ensure seamless peaceful coexistence
that forms the bedrock for teamwork and
enhance d service delivery. The traditional
legal lawyers and ADR practitioners should
endeavor to create a mutually beneficial
relationship to better understand their
respective roles specifically on how best to
dispense justice and maximize the benefits
to the society in the broadest possible ways.
There is need to consider integrating of
ADR or conflict resolution approaches into
the emerging or new leadership and social
development initiatives as well as into issues
of elections, human rights, environmental
justice, youth
development
and
restorative justice. This will increase
the ease to create a social order where
everybody is at peace with his/her
neighbors.
Further,
leadership
development
can be significantly enhanced when
there is a sufficient will to develop
and impart conflict resolution skills
from elementary level upwards. This
will enable to sustainably develop
considerable number of peer mediators
who can greatly improve learning
environment.
However, despite the formal recognition
of the constitutional mandates of
these mechanisms to promote dispute
resolution, there is no substantive policy
or legislative framework that exists to
guide the promotion and use of the
mechanisms.
Nyamasi Irene is a Senior Corporate
Strategy Officer, Nairobi Centre for
International Arbitration. You can
engage her on this or related matters via
mail at: [email protected].