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CUEA CLS 412 LESSON 1
ADR GENERALLY
CHARLES BG OUMA
Adjunct Faculty CUEA
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Lesson Content
ADR generally
What is ADR?
Methods of ADR
Structures of ADR
Why ADR?
Arguments for and against ADR
Evaluating ADR
The Place of ADR in the Law-School Curriculum
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Learning Activities Getting to know each other
Recording of expectations and aspirations
Agreement on ground rules
Agreement on course structure course
content and delivery methods and timings
Agreement on mode of assessment
Lecture
Active brainstorming and discussion
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Introduction to the course
Lecturer :CHARLES B G OUMA POSITION: CUEA Adjunct Faculty, JKUAT Adjunct
Faculty, Senior Lecturer KSL
QUALIFICATIONS: LLB,(UON) MLB (WHU/BLS), MDE
(UON)(ongoing)
Advocate of the High Court of Kenya( 20 yrs)
Interests: Commercial and Finance Law, Dispute
Resolution, Constitutional Law
Contact [email protected] , 0713 937282
sms preferred
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Introduction to the Course
Course Content Arbitration & ADR ( Negotiation and
Mediation)
Course times Fridays 11 a.m -2 p.m
Number of Lessons 12
Introduction 1 Arbitration 8 Mediation 2 Negotiation 1
Assessment Sit in CAT (Open Book 1 Hour) 10 : ASS/Class
Participation (one week to submit) 10: Attendance
(70% of scheduled classes) 10: Exam 70
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Lesson 1 Objectives
By the end of this lesson you should be able to
1. Define ADR
2. Distinguish ADR from other forms of DisputeResolution
3. Name the different methods, types and structures ofADR
4. Explain the juridical basis of ADR (particularly inKenya)
5. Evaluate the place of ADR in Dispute Resolution(particularly in Kenya)
6. Explain the place of ADR in the Law SchoolCurriculum (particularly in Kenya)
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Readings1. Owen Fiss Against Settlement 93 Yale L. Review 1073 1984
2. Menkel-Meadow,Carrie Whose dispute is it anyway?
3. Sternlight Jean R.4. Ellinghausen Don Jr.
5. What you need to know about dispute resolution 2006American Bar Association Section of Dispute Resolutionhttp://www.abanet.org/dispute/draftbrochure.pdf
6. Moffi tt Michael, Three Things to be Against-Settlement notincluded 2009 Fordham Law Review .(http://ssrn.com/abstract=1412282
7. Court ADR Library Research articlehttp://courtadr.org/library/effective
8. CPR Order 46 Rules 1-18
9. Carrie Menkel-Meadow. Empirical Studies of ADR: The BaselineProblem of What ADR is and What It is Compared to(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1485563)
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What is ADR?
From John Millers article in your reading list
at page 1
Alternative Dispute Resolution (ADR) is an
umbrella term that refers to various
methods used to resolve disputes without
resorting to litigation (Nolan-Haley,1992).
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What is ADR? The American Bar Association (ABA, 1999)
defines ADR as, an array of non-binding and
binding dispute resolution methods that
involve the use of third-party neutrals to aid
the parties in contract controversies via a
structured settlement process.
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What is ADR?
Alternative Dispute Resolution (ADR) is a
collection of processes used for the purposeof resolving conflict or disputes informally and
confidentially.
ADR provides alternatives to traditional
processes, such as.........; however, it does not
displace those traditional processes
(http://www.cdc.gov/od/adr/about.htm )
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What is ADR?
Alternative dispute resolution (ADR) ......
includes dispute resolution processes and
techniques that act as a means for disagreeing
parties to come to an agreement short of
litigation.
http://en.wikipedia.org/wiki/Alternative_dispute_resolution
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What is ADR?
The term "alternative dispute resolution or "ADR"
is often used to describe a wide variety of dispute
resolution mechanisms that are short of, or
alternative to, full-scale court processes.
The term can refer to everything from facilitated
settlement negotiations in which disputants are
encouraged to negotiate directly with each other
prior to some other legal process, to arbitration
systems or minitrials that look and feel very much
like a courtroom process. USAID ADR Practitioners guide 1998
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The Basic Premise of ADR
From John Millers article in your reading list at page 1 The basic premise of ADR is that litigation can and should be
avoided whenever possible. ADR, when applied to public
procurement, seeks to resolve disputes equitably and
expeditiously by keeping the process in the hands of
procurement officials and their legal advisers and away from
litigating attorneys, judges and courts.
.the larger issue is the need for contracting officials and their
legal advisors to approach rifts in contractual relationships
from an ADR perspective that emphasizes mutuality over self-
interest and reconciliation over termination
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What is ADR?
The field of ADR (originally known as
alternative dispute resolution in the United
States) has more recently been called
appropriate dispute resolution, or just
dispute resolution
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Methods of ADR First, methods for resolving disputes outside
of the official judicial mechanisms.
Second, informal methods attached to orpendant to official judicial mechanisms.
There are in addition free-standing and orindependent methods, such as mediationprograms and ombuds offices withinorganizations
source http://en.wikipedia.org/wiki/Alternative_dispute_resolution
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Types of ADR 2006 American Bar Association
1. Arbitration2. Mediation
3. Negotiation
4. Case Evaluation
5. Early Neutral Evaluation
6. Facilitation
7. Family Group
Conference
8. Mini-Trial
9. Multi-Door Program10. Neutral Fact-Finding
11. Ombudsman
12. Parenting coordination
13. Pro Tem Trial
14. Private Judging
15. Settlement Conferences
16. Special Master
17. Summary Jury Trial
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Types of ADR
The United States Code (5 USC Section 571)
defines ADR as consisting of: conciliation;
facilitation;
mediation;
fact-finding;
mini-trials;
arbitration;
the use of ombudsmen, and
any combination of the above.
Miller supra at p 2
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The Main Types of ADR1. Arbitration
2. Mediation
3. Negotiation
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Some Definitions
Negotiation is a dialogue intended to resolve disputes, to produce anagreement upon courses of action, to bargain for individual or collective
advantage, or to craft outcomes to satisfy various interests. It is the
primary method of al ternative dispute resolut ion.
http://en.wikipedia.org/wiki/Negotiation
Mediation is process in which a third party becomes involved in a content
dispute between two or more editors in order to try to guide their
discussion towards the formation of agreement:
Arbitration is the hearing and determination of a dispute by an impartial
referee agreed to by both parties.. the act of deciding as an arbiter;
giving authoritative judgment; "they submitted their disagreement to
arbitration wordnetweb.princeton.edu/perl/webwn
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Key characteristics of the three
types of ADR
Degree of party control
of the proceedings
NEGOTIATION
MEDIATION
ARBITRATION
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HIGH
MEDIUM
LOW
Structures of ADR ADR includes informal tribunals, informal
mediative processes, formal tribunals and
formal mediative processes
The major differences between formal and
informal processes are :-
a. pendency to a court procedure and
b. the possession or lack of a formal structure for
the application of the procedure. Source http://en.wikipedia.org/wiki/Alternative_dispute_resolution
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THE JURIDICAL BASIS OF ADR
It is consensual It isjurisdictional. The state permits its
citizens to settle disputes outside of or as an
adjunct to the judicial system
It is a hybrid of the foregoing
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THE JURIDICAL BASIS OF ADR -
KENYA
Law of contract
Constitution Article 159
Civil Procedure Act CPR O 11, 25, 46 et al
Dispute specific legislation limiting excluding
or permitting ADR e.g. s 176 204 CPC S 87 KR
Act
Arbitration Act 2009
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Why ADR? (ADR) originally designed to challenge various
aspects of formal litigation
Brittle,
rigid and binary outcomes,
excessive cost and delay,
limited bi-partisan and bi-lateral participation,
emphases on the past and precedent, rather than
future and more creative outcomes and relationships
Per Carrie Menkel-Meadow (2009)
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Why ADR
ADR Evangelists Settlement is synonymouswith agreement or even deal breaking!
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Why ADR?
USAID 1998
ADR is touted as more efficient and effectivethan the courts in providing justice, especiallyin countries in which thejudiciary has lost thetrust and respect of the citizens.
Moreover, ADR is seen as a means to increaseaccess to justice for populations that cannotor will not use the court system, to addressconflicts in culturally appropriate ways, andto maintain social peace.
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Why ADR?
Sternlight (2007) In the international context, ADR is said to foster the
rule of law in several ways:
(1) it may increase access to justice by making it easierfor people who are poor, illiterate, or geographicallydispersed to bring or respond to a claim;
(2) it may reduce the amount of money and timeneeded to resolve disputes;
(3) it may provide an alternative to corrupt or biasedcourt systems;
(4)it may promote foreign investmentopportunities;
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Why ADR?
Sternlight (2007)
(5) it may provide justice to groups, such aswomen and minorities, whose interests arenot well served by the formal legal system;
(6) it may bring community members togetherand establish greater social harmony;
(7) it may bring about political reform; and
(8) it may help community members worktogether to better protect their individualrights.
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Why ADR?
Moffitt 2009
Settlements can be autonomy enhancing
Settlements can also be value creating
Settlements can be value promoting
Settlements can lead to docket clearing
Settlements can lead to selective casefiltering
But settlement must not be oversold. The
vision is not always the same as the reality
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Arguments against ADR The point of departure is always Owen Fiss (1984) .
He has several arguments against settlement
1. Imbalanceof power
2. Agency costs
3. Absence ofrealconsent
4. Lack of a foundation for continuing judicial involvement
5. Justice ratherthan peace
6. Theeducational function of public adjudication
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Arguments against ADR
Litigation romanticists settlement is synonymouswith compromise or even selling out
Settlement erodes the justice system by decreasing
appellate review opportunities Yeazzelle (1995)
Settlement deprives the public of litigation driven
articulation of public norms Luban (1995)
Settlement favours harmony over justice Nader
(1993)
Process pluralists. Both systems are worthy of praise
and celebration Bush (1989)
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Arguments against ADR
Sternlight (2007) A major concern is that the informalization and
privatization of ADR is hostile to the rule of Law1. The privatization of dispute resolution is problematic because
the elaboration of law achieved in public trials and publisheddecisions is necessary to protect and enhance individual rights
2. Treating disputes as matters of individual rather than publicconcern eliminates important public accountability
3. Dispute resolution fails to serve an important educationalfunction when it is privatised
4. Private dispute resolution processes are more easily skewed bypower imbalances in society
5. ADR is especially unsuitable for vindicating family disputes
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Arguments against ADR
Sternlight (2007) The strength and appeal of the rule of law
critique should not be underestimated. In the
United States, even many of ADRs staunchest
advocates recognize that there are
circumstances in which disputes are better
resolved publicly, through litigation, rather
than through negotiation, mediation,
arbitration, or some other private means
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Advantages of ADR (Mediation)
The positive aspects ofmediation are:
It helps to identify the true
issues of the dispute.
It resolves some or all of the
issues.
Agreement can be reached
on all or part of the issue at
dispute.
It is flexible and informal
The needs and interests ofthe parties are met (in part
or in full).
The parties reach an
understanding of the true
cause of the dispute.
The parties reach an
understanding of each
others needs and interests.
It provides the possibility of
preserving the relationship
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Advantages of ADR (Arbitration)
Certainty
Predictability
Neutrality and convenience of forum
Less prone to Corruption
Expert decision makers
Efficient- cost effective, speedy resolution ofdisputes, focus on substance of the dispute not
technicalities party control of the process
Effective- finality and ease of enforcement
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Disadvantages of ADR
(Arbitration) Justice vs finality
Rogue arbitrations
Secrecy
Not cheaper any more, in fact
more expensive than court
litigation
Increasingly judicialized
Unsuitable for the resolution of
certain types of disputes
Encourages regulatory arbitrage
Disregard for party policy
Inequality of the parties
leads to unequal bargain
Influence of parties on the
party nominated
arbitrators
Reinventing the procedural
wheel takes away time
tested and proven
procedural safeguards
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Perceived Advantages of ADR
1. The parties to the dispute define the issues.
2. The process is consensual.3. The process is controlled.
4. The process is private.
5. The dispute can be resolved expeditiously.
6. The business relationship can be preserved.
7. The results of litigation cannot be predicted.
8. The costs of litigation are avoided.
9. ADR seeks to resolve disputes efficiently and effectively. The
conventional wisdom is that courts are unequal to the
challenge
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Acknowledged Problems in ADR
While it has many advantages, there are important
disadvantageswhich should be noted:
1. Case law and legal precedent are avoided.
2. The process may create a two tier system of justice.
3. The process requires commitment.
4. The process may not work with multiplecomplex issues.
5. Main issue with ADR: Is the public a stakeholder in everydispute? Is there a legitimate public interest in HOW and
WHERE (and WHEN) disputes are to be resolved
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Some reports on the efficacy of
the Judiciary in Kenya BY SARAH WAMBUI
(Thursday 24th June 2010)
http://www.capitalfm.co.ke/news/
Kenyanews/Kenya-has-a-million-pending-
court-cases
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Some reports on the efficacy of
the Judiciary in Kenya
..study which was conducted by Nairobi University lecturerBeneah Mutsotso on behalf of the Federation of Women
Lawyers (FIDA) Kenya chapter shows that there are 998,263
cases that are awaiting conclusion at the High Courts and
magistrate courts in Kenya.
The oldest reported case was filed in 1984 and by the time
we were concluding this study it had not yet been resolved.
Others are 10 years old and there are hundreds of thousands
of court cases especially those dealing with accidents that are
stillpending, he said
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Some reports on the efficacy of
the Judiciary in Kenya
Kenya: Court Case Backlog a National Shame
Daily Nation on the Web 9 August 2007
http://allafrica.com/stories/200708090081.html
The Judiciary has been frequently in the news,
and on almost every occasion, this arm of
Government has been mentioned negatively
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Some reports on the efficacy of
the Judiciary in Kenya Surprisingly, most of the criticism leveled at the
Judiciary has been from its own officers or from
the public, and the conclusion is often the same:
1. That it is not delivering justice on time, if at all;
2. That it is largely unschooled;
3. That it is corrupt; and
4. That, therefore, it urgently requires some sort of
overhaul.
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Some reports on the efficacy of the
Judiciary in Kenya
As the government of Kenya is fighting to clear
its name from allegations of corruption, its
efforts are being undermined by renewed
claims of graft in the judiciary.
President Mwai Kibaki's administration had
shaken up the judiciary in an attempt to clean
up the system. It has not succeeded (
NAIROBI, Apr 16, 2005 (IPS)
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Some reports on the efficacy of
the Judiciary in Kenya Report followed a fact-finding mission to Kenya in
December 2004 by the ICJ on the independence and
transparency of the judiciary.
'We went around collecting views and the evidence
we received was overwhelming that corruption was
still taking place but in a very secret ive manner
because the judicial officers are afraid of the radicalsurgery,'' said George Kanyeihamba, the head of the
mission ( NAIROBI, Apr 16, 2005 (IPS)
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Some reports on the efficacy of
the Judiciary in Kenya
With the foregoing, and much more , in mind
do you still think that the judiciary in Kenya is
equal to the task of resolving the disputes?
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Empirical Research on the
Effectiveness of ADR
Court-Ordered Arbitration in North Carolina: AnEvaluation of Its Effects
Clarke, Stevens H.; Donnelly, Laura F.; Grove, Sara. 1989Abstract:
This is a comprehensive study of one of the first court-ordered arbitration programs in the country (instituted in1987). The program operated in three diverse judicialdistricts (urban, semi-urban and rural) and addressed civilcases involving a damage claim of $15,000 or less. Thestudy found that litigants' satisfaction with outcomes andprocedures improved; attorneys were satisfied withprogram; eligible civil cases were disposed of more quicklythan with standard procedures; and the number of civiltrials decreased
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Empirical Research on the
Effectiveness of ADR J ust, Spe edy, and I nexpensive ? An Eval uatio n of Judicial Case
Management Under theCivilJustice ReformAct
Kakalik, James S.. Judicature, 80(4):184-189, January-February, 1997Abstract:
This article is a summary of the 4-book research series done by theInstitute for Civil Justice (ICJ) on the Civil Justice Reform Act (CJRA) ofRAND. The CJRA required each federal court district to develop a plan forcivil case management to reduce costs and delay, and 10 districts werechosen as "pilot" programs for evaluation. The case managementprinciples fall into 4 categories: differential case management; early active
judicial management; judicial management of discovery; and referral ofappropriate cases to non-binding ADR. The study found that the CJRA pilotprogram had little effect on delays and costs of litigation and that ADR hadno major effect on litigation cost or delay, though participants liked theADR programs and cases referred to ADR were more likely to have amonetary outcome
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Empirical Research on the
Effectiveness of ADR Trapping the Data: An Assessment of Domestic Relations
Mediation in Maine and Ohio Courts
Wissler, Roselle L.. May 1999Abstract:
This report looks at domestic relations mediation in thirteencourts in Maineand six courts in Ohio. The data was gathered fromparticipant questionnaires submitted for 789 cases mediated inMaine between February 1996 and March 1997 and from 154 casesmediated in Ohio between February 1997 and March 1998. Thedata gathered included type of case, mediator demographics,mediation session length and attendance, mediation outcomes, andparticipant assessment of the process.
The study found that very little impacted settlement to any extent,but that participant assessments were affected by case and partycharacteristics, as well as mediator characteristics.
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Empirical Research on the
Effectiveness of ADR
Court-Ordered Civil Case Mediation in North Carolina: AnEvaluation of its Effects
Clarke, Stevens H.; Ellen, Elizabeth D.; McCormick, Kelly. 1995Abstract:
This is a comprehensive study of a court-ordered mediation pilotprogram. The program operates in 13 counties, four of which wereanalyzed intensively for this study. The study looked at participationrates, settlement rates, satisfaction and cost savings to litigants.
It found that the program achieved its goals of greater efficiencyand satisfaction to some extent, but not as much as its proponentsmay have hoped. It recommends that the court system considermaking participation in mediation happen more often and morequickly
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Empirical Research on the Effectiveness of ADR
Metro Court Project Final Report: A Study of the Effects of Ethnicity andGender in Mediated and Adjudicated Small Claim Cases
Hermann, Michele; LaFree, Gary; Rack, Christine; West, Mary Beth.January 1993Abstract:
This re por t is a res ult of a stu dy t hat e xamined ho w wo men a ndminorities fared in mediated and adjudicated small claims civil cases inBernalillo County, NM. It evaluated results in mediation and adjudicationusing two measures: 1) the objective formula for outcome developed byVidmar, and 2) subjective measures of satisfaction.
The study found that minority claimants consistently received less moneythan non-minorities, while minority respondents consistently paid more.These results were more extreme in mediated cases than in adjudicatedcases. Gender did not have an effect on monetary outcomes, except thatfemale respondents paid less in mediated than in adjudicated cases.Minority claimants were more likely than non-minority claimants toexpress satisfaction with the mediation process. Minority women werethe most satisfied with the process, despite the fact that they were morelikely to receive less as claimants and pay more as respondents
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Is ADR the forum of Choice? In 2002 the European commission sought to know
why the use of ADR is not as prevalent as expected
given its perceived and possibly proven benefits
So they posed the following question to the
promoters of ADR
What is your opinion on the general approach to ADR
that should be followed by the institutions of the
European Union, and what might be the scope of
such initiative
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Whose dispute is it anyway?
Not every dispute resolution is suitable forresolution in ADR
The suitability of the forum depends on the
degree of escalation of the dispute
Sometimes there is a legitimate public interest
that certain disputes be resolved only in a
certain forum and in a certain way.
Can you think of examples?
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Process Pluralism.
Menkel-Medow (2006)Moffitt (2009) ADR is a compliment to, not a substitute of
litigation
ADR and Litigation have coevolved in ways
that make them dependent on each other
Litigation should not be romanticised, ADR
should not be evangelised Both processes have something to offer which
can be transported with necessary
modifications
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Evaluating Dispute Resolution
Mechanisms comparisons of various forms of dispute
resolution (DR) with each other on a variety
of dimensions (fairness, justness, cost and
efficiency, party satisfaction and systemic
accountability), and evaluations and
assessments of the efficacy of various
practices and alternative forms of these
dispute resolution devices.
Per Carrie Menkel-Meadow (2009)
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Difficulty of Comparisons or
Evaluations
While in this essay I review some of the recentstudies on the uses of ADR, my theme is one
of scepticism that we can ever truly measure,
with any degree of accuracy, whether one
particular process is ever better or worse
than another in a particular case.
Per Carrie Menkel-Meadow (2009)
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Recurrent Themes in Evaluating
ADR1. The need for clarity in describing processes that vary as much
internally as they do across processes;
2. The great difficulty of developing accurate or truly
comparative treatments or processes of similardisputes;
3. The virtual impossibility of using real experimental models in
subjecting the same dispute to several different treatments
for comparisons or by co-varying factors of influence (such as
case types, gender of disputants,etc.) And;
4. The open boundaries and dynamism of the field itself.Menkel-Meadow(2009)
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Evaluating the place of ADR in
Dispute Resolution It is usually compared to litigation in national courts
There is a tendency to evangelise it as the panacea fordispute resolution
The ideal is not always reflected in the practice
All agree that it is not a substitute but a compliment toexisting systems
All agree that it is not suitable for every dispute
All concede the practice is not as good as the ideal
Litigation serves important public purposes that should bepreserved
Settlement has value but the public interest in litigationmay sometimes override that value
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ADR and the Law School Curriculum
In the early 1980s there was an increasing call for
American Law schools to move away from thefamiliar tilt in law curriculum toward preparing
students for legal combat to training their students
for gentler arts of reconciliation and
accommodation
The Mcrate report on legal education recommended
the inclusion of training in problem solving skills
typically associated with ADR
Courts world over are increasingly turning to ADR to
relieve their dockets.
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ADR and the Law School Curriculum
The new constitution of Kenya has entrenched ADR
The CPR have been amended to incorporate ADR
more actively
The Arbitration Acts 1995& 2009 have strengthened
the legal institutionalization of arbitration
Empirical research suggests that more and more
disputes are going to ADR mechanisms
There is a new found love for plurality of processes
and multi-tiered dispute resolution systems
Have Kenyan law schools adequately responded to
the expansion of ADR? Have Kenyan Lawyers ?
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END OF LESSON 1. ANY
QUESTIONS?
CHARLES B G OUMA LLB ,MLB
ADJUNCT FACULTY CUEA
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