cuea cls 412 lesson 1 [compatibility mode] - copy

8/6/2019 CUEA CLS 412 LESSON 1 [Compatibility Mode] - Copy

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24/01/2011

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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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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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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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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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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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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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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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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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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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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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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.


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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.


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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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