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Alternative Dispute Resolution

Mediation Advocacy in Kenya –Remoulding The Gladiator in the Room tothe Valuable Ally of Dispute Resolution

[vc_row triangle_shape="no"][vc_column][vc_column_text] This paper considers the role of lawyers within the Mediation process in Kenya and attempts to shed light on the best practice for Mediation Advocacy and practice generally and the Court Mandated Mediation Program in particular. This follows persistent murmurs from the Mediator community that lawyers are often the stumbling block to a successful mediation settlement agreement. The article aims to deconstruct the role of the lawyer in the mediation process as well as the interplay between the lawyer’s role as protector of their client’s interest and the Mediator’s goal of achieving a satisfactory settlement between the disputants, and how to pivot both to achieve the real purpose of mediation which is a “Win-Win” outcome. The growing prevalence and influence of mediation as a dispute resolution mechanism means that the advocate must acquire a completely new tool box for dispute resolution. It also requires the disputants to adopt a collaborative approach to dispute resolution.This is a huge departure from the traditional adversarial approach of our common law based legal system.1Mediation practice was introduced fairly recently within the formal dispute resolution framework in Kenya with the enactment of Act No. 12 of 2012 that established the Court Mandated Mediation Process. To...

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Third Party Funding and Investment Arbitration – The Ménage À Trois Conundrum of International Arbitration?

[vc_row triangle_shape="no"][vc_column][vc_column_text] Third Party Funding and Investment Arbitration – The Ménage À Trois Conundrum of International Arbitration? [/vc_column_text][vc_empty_space height="15px"][vc_column_text] This paper considers Third Party Funding as an evolving phenomenon within the context of international arbitration. This concept has grained significant ground particularly following the financial turmoil experienced during this new millennium, great technological strides and the emergence of high value awards on the global plane. The sector is largely variable and is becoming populated by players who though highly invested prefer to operate in the background with potential to significantly influence and alter the playing field. Considering that the sector is in flux and given its international nature subject to different and constantly conflicting dynamics in different jurisdiction there is a case to be made for policy and regulatory reform to respond to the ethical conundrums that have emerged and continue to develop. [/vc_column_text][vc_empty_space][/vc_column][/vc_row][vc_row triangle_shape="no"][vc_column width="1/3"][/vc_column][vc_column width="1/3"][mkd_button size="medium" type="" target="_blank" icon_pack="font_awesome" fa_icon="fa-address-book-o" font_weight="" text="Read Full Article" link="https://www.ciarbkenya.org/wp-content/themes/mxp_base_theme/mxp_theme/assets/volume9-issue1.pdf" background_color="#003a7e" hover_background_color="#f9c147"][/vc_column][vc_column width="1/3"][/vc_column][/vc_row] ...

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The Art and Science of Virtual Proceedings: Shifting the Paradigm in ADR Tribunals

[vc_row triangle_shape="no"][vc_column][vc_column_text] The Art and Science of Virtual Proceedings: Shifting the Paradigm in Alternative Dispute Resolution Tribunals [/vc_column_text][vc_empty_space height="15px"][vc_column_text] This paper considers the paradigm shift necessitating virtual proceedings following the various institutional guidelines and laws that were instituted at the onset of COVID-19 pronounced and issued by the World Health Organization as well as the Kenyan Ministries of Health and Interior and Coordination of National Government all requiring social distancing and imposing stay at home policies. In some jurisdictions Kenya being one of them, the Courts were initially closed. The Judiciary later put in place upscaling of operations geared primarily towards the use of virtual proceedings in the delivery of judgments and the dispensation of urgent applications. Adapting to online and virtual proceedings within the Alternative Dispute Resolution (ADR) space has been more challenging to track due to the private nature of most proceedings. However, shared experiences by practitioners and participants in ADR can give an insight into their experiences comparative to the litigation sphere. The writer further chanced upon a Webinar conducted by ICSID entitled The Art and Science of Virtual Hearings which made some very useful contributions to the practical experience of conducting virtual proceedings from the perspectives of the Tribunal, the...

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