More and more families are choosing to go the alternative dispute resolution route when it comes to succession matters. This guide dives into why arbitration and mediation in Kenya are gaining traction and why embracing these options can be beneficial to all the parties involved.

What is the importance of using arbitration and mediation in Kenya when settling family disputes in succession matters?

Arbitration and mediation in Kenya are encouraged as alternative dispute resolution mechanisms by our Constitution, as opposed to the usual Court process. This is important as the two methods have numerous advantages that are not available in the Court process. Thus, they have been well received and embraced by society in general in a bid to settle their disputes, especially in matters of succession and distribution of the estates. So, why are more people favoring arbitration and mediation in Kenya?

1. Beneficial for all people involved. One of the major advantages of using the two processes for settling family disputes in succession matters is that it results in a ‘win-win’ situation as opposed to a court process, which results in a ‘win-lose’ result. This is more the reality in mediation as the parties decide their settlement, and all the parties contribute to the process and determination of the dispute. Thus, it is a win for all the parties. In court, the adversarial process of determining disputes results in one of the parties winning and the other losing, which is a worse result than the mediation process.
2. Privacy in family matters. The processes also help in ensuring privacy as the families discuss their matters in a private setting with only the parties to that dispute present when that matter is being discussed. This is different from a court process, which is open to all members of the public, including those outsiders to the dispute. In so doing, the details of the disputes are kept private.
3. Autonomy over the person overseeing the resolution. The parties also have the advantage of deciding on who will preside over their matter as a mediator or arbitrator. In the court process, the parties to the dispute cannot decide who will be the judge or the magistrates to hear and determine their dispute. With arbitration and mediation in Kenya, the parties can also decide on the venue where they will hear or discuss the matter to come up with a solution for their disputes. In the courts, the parties must use the specific courts provided and available, and they cannot use an alternative venue or space.
4. Flexibility over timing. Another advantage of using arbitration or mediation is that it is flexible, as the parties to the dispute can decide the time they will be meeting. In the court,s the time for meeting and attending court is already determined and must be adhered to. Arbitration and mediation are also faster, as the timelines within which the determination is to be made are set and have to be adhered to, as opposed to a court process, which must take into consideration other matters it has to hear and determine. The court must follow its diary and calendar, which in most cases usually has the pending matters and a backlog.
5. Cost-effectiveness. Arbitration and mediation are less expensive as they do not require filing fees or any other fees involved in the court process. The court process has numerous fees, including filing and other fees, which are absent in the arbitration and mediation process.

Therefore, arbitration and mediation in Kenya have many benefits, as has been showcased by the above analysis. It is therefore important for parties in a family dispute, and especially in succession matters, to consider arbitration and mediation processes as opposed to the traditional court process, as these alternative dispute resolution mechanisms have numerous benefits when it comes to settling disputes as compared to the courts.

What should parties consider before settling on a certain arbitrator or a mediator?

The quality of the process of arbitration or mediation is based on the quality of the arbitrator or mediator. The parties, therefore, should take time before settling on a certain arbitrator or mediator, as settling on the wrong arbitrator/mediator can have negative consequences.

There are certain parameters that the parties can use before settling on an arbitrator and or mediator, and this includes the neutrality of the chosen person in that matter. The other consideration is to ensure that the arbitrator or mediator has the necessary and requisite expertise to deal with the disputes. If, for example, the matter in dispute is a succession one, then the arbitrator or mediator well-versed in succession matters is a better option.

Is the decision made by an arbitrator or before a mediator legally binding?

In both arbitration and mediation in Kenya, the decisions arrived at are filed in court and are legally binding and consequently enforceable.

However, the courts are often reluctant to override the decisions made in the arbitration or mediation unless there is evidence of bias or partiality in the processes of arriving at the decisions, and hence, in most cases, the courts allow the decision arrived at to stand.

What is the role of technology in arbitration and mediation in Kenya?

Technology in recent times has played a major and pivotal role in the arbitration and mediation processes, as the hearings of the matters, for example, can be conducted on an online platform. This allows the parties and their arbitrator or mediator to be in different places as the matter is going on. This has helped to reduce the costs of the determination processes significantly. It has also helped to increase the flexibility of these alternative resolution mechanisms. This has made society embrace the processes even more.

At the same time, technology has enabled evidence and documents to be filed and or shared using these online platforms, thus helping to reduce the time required for filing and service of documents. Thus, technology has had a significant impact in this field, thereby increasing the advantages of using these processes to help settle disputes amongst parties compared to traditional court processes.

Interested in Alternative Dispute Resolution? Get Expert Advice.

Arbitration and mediation in Kenya offer numerous benefits. However, to get the most out of them, it is important to understand how these processes work, which legal situations they are best suited to, and how to go about selecting the right mediator or arbitrator for your case. Our legal experts are here to help you make this decision. Simply use the form below to book a consultation with us.