Disputes can arise in commercial transactions, employment relationships, property dealings, family matters and other areas of daily life.
When a disagreement occurs, going directly to court is not always the only option. Depending on the nature of the dispute, the parties may consider negotiation, mediation, arbitration or litigation.
The appropriate approach depends on the facts, the applicable law and the outcome the parties seek.
Negotiation: Seeking a practical agreement
Negotiation allows parties to discuss their differences and explore a mutually acceptable resolution.
It may be useful where the parties wish to preserve an ongoing commercial or professional relationship. However, proposals and settlement terms should be documented carefully, and urgent protective steps should not be delayed where necessary.
Mediation: Working towards a facilitated resolution
Mediation involves a neutral third party who helps the parties communicate, identify issues and explore possible solutions.
The mediator does not ordinarily impose a decision in the way a court or arbitral tribunal may determine a dispute. Whether mediation is suitable depends on the circumstances, including the parties’ willingness to participate and any concerns about safety or unequal bargaining power.
Arbitration: A private dispute-resolution process
Arbitration may be available where the parties have a valid arbitration agreement or where the law otherwise permits it.
An arbitrator determines the dispute in accordance with the applicable arbitration framework and agreement. The process, costs and available remedies depend on the circumstances.
Litigation: Seeking a court determination
Court proceedings may be necessary where a dispute cannot be resolved through other means, where a binding judicial determination is needed, or where urgent court intervention is appropriate.
Litigation requires attention to jurisdiction, evidence, procedure, costs and statutory deadlines.
Article 159 of the Constitution of Kenya recognises alternative forms of dispute resolution, including reconciliation, mediation and arbitration, subject to constitutional principles and applicable law.
Which option is best?
There is no single answer for every dispute. Some matters are well suited to negotiated settlement, while others require formal proceedings or urgent legal action.
An advocate can assess the legal position, explain the available routes and help identify a proportionate strategy.
Resolve disputes with informed legal guidance.
Asembo and Company Advocates provides legal guidance on dispute resolution and litigation-related matters, tailored to the circumstances of each case.
