Speakers: Jacqueline Waihenya, C.Arb, Samuel Mderitu, FCIArb, Sen. Dr. Arch. Slyvia Kasanga, FCIArb, Prof. Kenneth Wyne, C.Arb.
Moderator: Irene Itoto, MCIArb
As the Dispute Resolution Bill inches closer to debate, it becomes increasingly clear that while the Bill aims to bring much-needed structure to Kenya’s ADR space, it risks solving one problem by creating several others. At the heart of the critique lies a simple yet powerful plea: regulate without strangling. Support without suffocating. In seeking to “professionalize” and “standardize” ADR, we must resist the temptation to overregulate a field that thrives on flexibility, informality, and party autonomy.
ADR whether mediation, arbitration, conciliation, or negotiation, is not just a procedural alternative. It is a constitutional imperative under Article 159(2)(c) and Article 48 of the Constitution, grounded in accessibility and social justice. For many marginalized communities, it represents the only feasible route to justice. That promise, however, risks being undone if the proposed National Dispute Resolution Council (NDRC) transforms into a gatekeeper rather than an enabler.
The Bill proposes a Council with members appointed by the Attorney General and largely drawn from the legal profession. That structure immediately raises two concerns: composition and control. ADR is not a legal preserve. It is used daily by professionals far beyond the legal field – engineers, community elders, psychologists, architects, surveyors, and many others. To centralize oversight under a government ministry, and to tie governance narrowly to legal practitioners, is to misunderstand the organic, multidisciplinary nature of ADR as it has developed in Kenya.
Moreover, the Bill arguably qualifies as a money bill, given that NDRC members will be remunerated using public funds. This not only complicates its legislative path through Parliament, but also begs the question: is there a more efficient, less centralized model? A viable alternative could lie in self-regulation, through Practice Area Committees (PACs) anchored in existing professional bodies, but recognized by law. Kenya already has functional institutions like CIArb, AAK, LSK, and accredited ADR training bodies that set standards, provide discipline, and certify competence. Why not strengthen these, rather than build an expensive, possibly redundant, bureaucracy?
Standardization is indeed necessary, especially as we’ve witnessed a rise in unqualified mediators offering poor services, even threatening parties. However, standardization must not morph into straightjacketing. Take, for instance, the current push to enforce a uniform five-day mediation training requirement across the board. While structure is important, training and accreditation should be competency-based, not purely certificate-driven. Different sectors have different needs, and ADR must remain adaptable to serve them effectively.
Equally concerning are proposals in the Bill that allow lifting mediation confidentiality “for research or educational purposes.” Confidentiality is the beating heart of mediation. It fosters trust and openness. Weakening it – especially without clear consent protocols and legal safeguards – could easily deter parties and turn mediation into just another adversarial process.
On the international front, Section 30 of the Bill rightly clarifies how foreign mediation agreements will be enforced in Kenya, a welcome development. However, Kenya has yet to ratify the Singapore Convention on Mediation, which undermines this very goal. Without ratification, we remain ill-equipped to fully support cross-border mediation. Furthermore, the Bill’s provisions on accreditation and fee-setting, especially in Sections 73 through 87, suggest a tightening government grip. This could inadvertently push international and even domestic commercial users to foreign jurisdictions with more liberal, business-friendly ADR regimes.
There are also significant legal overlaps and omissions that the Bill fails to address. Where does this leave the Mediation Accreditation Committee (MAC) under the Civil Procedure Act? How will the Bill coexist with the proposed Construction Adjudication Bill? Why are adjudicators mentioned, but not arbitrators, when arbitration remains a core pillar of ADR? The Bill also risks overlapping with existing dispute resolution mechanisms under the Labour Relations Act and sector-specific statutes. More fundamentally, the Bill never clearly defines core concepts such as “dispute,” “binding settlement,” or jurisdictional limits. These ambiguities may spawn new litigation instead of resolving it.
Worryingly, the Bill is silent on the future of Online Dispute Resolution (ODR), an emerging frontier already reshaping ADR globally. Kenya cannot afford to fall behind. The law must allow for the organic growth of digital ADR platforms, especially in the wake of remote justice trends accelerated by COVID-19. Similarly, while the Bill vaguely mentions decentralization, it offers no roadmap for how ADR will function at the county or ward level, even as we claim to want justice closer to the people.
Rather than expanding bureaucracy, the government should consider incentivizing quality in ADR through smart policy. Recognition mechanisms, like the “blue tick” used by KEPSA or transparent public registries can reward excellence and accountability. These market-driven tools are more likely to drive quality improvement than top-down micromanagement. Additionally, if ADR is to evolve into a recognized profession, requiring practitioners to carry professional indemnity insurance could offer protection to clients while raising the bar on professionalism.
In conclusion, this Bill represents a rare opportunity to shape Kenya’s dispute resolution landscape for the future. But we must tread carefully. Overregulation will only undermine the flexibility, creativity, and inclusivity that give ADR its edge. Let us not pass a law that satisfies legal formalism but alienates the spirit of ADR. Let us not drive away the very users and global players we hope to attract.
It is time to listen to the voices of those who built ADR from the ground up community leaders, seasoned practitioners, sector-specific bodies, and users. Regulation must come not with a hammer but with a scalpel. Support must come not with control but with collaboration. We must provide structure without killing innovation, and ensure quality without destroying accessibility.
The future of dispute resolution in Kenya depends on getting this balance right.
