Table of Contents

DISTINGUISHING BETWEEN ARBITRATION AND MEDIATION...........................................2

DEFINITION OF ARBITRATION AND MEDIATION..........................................................2

SETTLEMENT VS. RESOLUTION.................................................................................. 2

NON-BINDING/BINDING............................................................................................. 2

INTEREST-BASED VS. RIGHTS-BASED.........................................................................3

PROFESSIONALISM................................................................................................... 3

CONFIDENTIALITY.................................................................................................... 3

LEVEL OF SATISFACTION........................................................................................... 4

THE BAGGAGE ASSOCIATED WITH DISPUTE RESOLUTION IN THE ARBITRATION AND

MEDIATION.............................................................................................................. 4

DISTINGUISH BETWEEN RECONCILIATION AND MEDIATION...........................................5

WHAT IS THE DIFFERENCE BETWEEN RECONCILIATION AND MEDIATION?...................5

DISTINGUISH BETWEEN ARBITRATION AND PRIVATE JUDGING....................................7

PRIVATE JUDGE DEFINED......................................................................................... 7

APPEALABILITY....................................................................................................... 7

FAIRNESS................................................................................................................. 7

DEVELOPMENT OF LAW............................................................................................ 8

DISTINGUISH BETWEEN OMBUDSMAN AND CONCILIATION...........................................9

DEFINITION.............................................................................................................. 9

COMPOSITION OF CONCILIATION PANEL AND OMBUDSMAN TEAM..............................9

CONSENSUS.............................................................................................................. 9

DISTINGUISH BETWEEN EARLY NEUTRAL EVALUATION AND TRADITIONAL DISPUTE

RESOLUTION MECHANISMS........................................................................................ 10

DEFINITION............................................................................................................ 10

INCORPORATION IN THE CONSTITUTION..................................................................10

1
RELATIVE VS. CONSTANT........................................................................................ 10

SOCIETY WHERE EACH OF THEM IS RELEVANT, RURAL VS. URBAN AREAS................11

ORIGIN, EUROPE VS. AFRICA, SUBJECTION TO REPUGNANCY TEST............................11

MANDATORY NEED FOR SPECIALIST KNOWLEDGE AND SKILLS................................12

BINDING AND NON-BINDING RESULTS.....................................................................12

PRELIMINARY VS. MAIN METHODS OF NON-JUDICIAL DISPUTE RESOLUTION

PROCEDURES.......................................................................................................... 12

WITH BAGGAGE VS. WITHOUT BAGGAGE.................................................................12

COST...................................................................................................................... 13

2
DISTINGUISHING BETWEEN ARBITRATION AND MEDIATION
DEFINITION OF ARBITRATION AND MEDIATION
Arbitration was defined under section 3(1) arbitration act to mean any arbitration whether or not
administered by a permanent arbitral institution; 1The definition as provided by this Act is
unclear and seems to be supporting the idea that the arbitrator must not necessarily be trained
arbitrator, anyone can act as arbitrator provided the parties believe in you and choose you.
Incoming up with elaborate definition, regard has to be had to other sources. Arbitration may
simply be defined as a process in which a neutral third party or an odd-numbered panel of neutral
parties, renders a decision based on the merits of the case. Parties to arbitration can maintain
some control over the design of the arbitration process. In some situations, the scope of the rules
for the arbitration are set out by statute or by contract. In other circumstances the parties work
together to design an arbitration process which is appropriate to their dispute.

Mediation is defined as a flexible, non-binding dispute resolution process in which a neutral

third party (the mediator) assists two or more disputants to reach a voluntary, negotiated
settlement of their differences. The parties have ultimate control of the decision to settle and the
terms of resolution. The mediator uses a variety of skills and techniques to help the parties reach
a settlement, but has no power to make a decision. The parties remain the decision makers2

There are several variances that can be extracted from arbitration and mediation and among these
discrepancies are the ones discussed below;

1 (2017) <http://admin.theiguides.org/Media/Documents/ArbitrationAct__No49.pdf>
accessed 12 April 2017.

2
<http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/adr_chapter1.pdf>
accessed 10 April 2017

3
SETTLEMENT VS. RESOLUTION
Whereas arbitration is type of dispute resolution that leads to settlement, Mediation is a mixed
bread that embraces both settlement and resolution. Mediation manifests itself either as informal
mediation or court-annexed (as envisaged under section 159A-159D of Cap. 21).The two
branches of mediation are different in that while mediation in the informal context leads to a
resolution, the court-annexed mediation process is a settlement process.3 The diverse feature of
mediation further leads us to another important differences between arbitration and mediation
that while arbitration manifest itself in only one way, mediation has duo manifestation.

NON-BINDING/BINDING
These words describe the type of commitment that parties make when entering the ADR
process. When they are bound to accept and respect the agreement of the ADR process, such as a
third-party decision in arbitration, that agreement is binding.4 This is in fact underpinned in
Arbitration Act section 32A. Except as otherwise agreed by the parties, an arbitral award is
final and binding upon the parties to it, and no recourse is available against the award
otherwise than in the manner provided for by this Act. In non-binding processes the mediator
does not decide who is right or wrong or issue a decision, such mediation or mini-trial, the
mediator cannot force the other parties to accept any agreement, and it is only the parties who
can jointly agree on a certain outcome. Once the parties agree to a contract, they are bound by
their contractual obligations. Any resolution resulting from a nonbinding process culminating in
contractual obligations of the parties can be enforced by the courts either as a contract or as a
court decision.

INTEREST-BASED VS. RIGHTS-BASED

These terms describe the main criterion that a procedure applies to resolve the dispute. Interest-
based dispute resolution processes expand the discussion beyond the parties legal rights to look
at underlying interests, deal with emotions, and seek creative solutions. The focus of these

3 (2017) <https://www.ciarbkenya.org/assets/access-to-justice.pdf> accessed 10

April 2017.

4
<http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/adr_chapter1.op.cit
,pp.2

4
processes is on clarifying the parties real motivations or underlying interests in the dispute and is
future oriented. Mediation, for example, is a process that traditionally focuses mainly on
underlying interests. Interest-based processes often provide the possibility of value-creation.
Rights-based processes, on the other hand, narrow issues, streamline legal arguments, and predict
judicial outcomes or render decisions based on assessments of the legal rights of the parties. An
example of a rights-based process is arbitration.

PROFESSIONALISM
Whereas arbitrators need not to be from arbitration centre or have expertise in arbitration. It is
desirable, though not essential that arbitrators have subject matter expertise, they should have
training in arbitration techniques and be accredited (Department of Justice Canada, 2006),
mediation on the other hand, in addition to economic and legal skills, mediators are professionals
who possess specialized technical training in the resolution of disputes. A mediator plays a dual
role during the mediation process- as a facilitator of the parties positive relationship, and as an
evaluator adept at examining the different aspects of the dispute.5

CONFIDENTIALITY
The proceedings of a mediation are confidential whereas arbitration though confidential, may
become public if there is an appeal. For example, whenever an award is filed in court for
enforcement, part of it becomes public thus undermining confidentiality. Applications to court
for interim measures of protection have the same effect.6 In a recent High Court decision, an
obita likely to alarm the local arbitration purist, the court stated: It is therefore clear that unlike
in mediation, arbitral proceedings are, just like in litigation, open to the public and follows a
similar procedure to that of litigations but with a more relaxed approach.7

5 'Gmail' (Mail.google.com, 2017)

<https://mail.google.com/mail/u/0/#inbox/15b6042c49167682?projector=1>
accessed 12 April 2017.

6 (2017) <https://www.ciarbkenya.org/assets/journal-volume-3-issue-2.pdf>
accessed 28 April 2017

7 (2017) <https://www.ciarbkenya.org/assets/journal-volume-3-issue-2.pdf>
accessed 20 April 2017.

5
LEVEL OF SATISFACTION
Many proponents of ADR argue that the ADR process and the outcomes are more satisfying for
the parties than a trial. Apparently, the reaching of a settlement by consensus is viewed as
producing high levels of satisfaction for the parties. However, a mediated outcome is still more
satisfactory than other forms of imposed decisions such as litigation, arbitration or adjudication.

THE BAGGAGE ASSOCIATED WITH DISPUTE RESOLUTION IN THE

ARBITRATION AND MEDIATION
According to Blackman (2008), there is a certain amount of baggage associated with any
dispute resolution process. In mediation, the baggage is primarily emotional in that it requires
participants to acknowledge that they are there to settle the case, often presenting a psychological
barrier to its use. In arbitration proceedings, because arbitration is an adjudicative process, the
baggage lies in the risk of reaching an adverse resolution8

8 Crilf.ca. (2017). [online] Available at: http://www.crilf.ca/Documents/Early%20Neutral

%20Evaluation%20Processes%20in%20Alberta%20-%20Oct%202016.pdf [Accessed 17 Apr.
2017].

6
DISTINGUISH BETWEEN RECONCILIATION AND MEDIATION
I will first of all start by clarifying the misnomer in these two related words; as nouns,
the difference between conciliation and reconciliation is that conciliation is the action of
bringing peace and harmony; the action of ending strife while reconciliation is the
reestablishment of friendly relations; conciliation or rapprochement.

7
WHAT IS THE DIFFERENCE BETWEEN RECONCILIATION AND
MEDIATION?
On the looks of it, there seem to be no major differences between conciliation and
mediation. However, as the names imply, conciliation is a much more formal mechanism
for dispute resolution than mediation.
Though, just as in mediation, the opinion of the conciliator makes no difference in the
process of conciliation and the warring parties, there seems to be unanimity among the
people that a conciliator has more powers than a mediator who is at best, a mediator
between warring parties.
A conciliator also happens to be an expert in the field in which he tries to adjudicate the
matters. On the other hand, a mediator is an expert in the techniques of communication
and negotiation as he tries to make the parties arrive at an amicable solution.
A conciliator seeks concessions from the parties at dispute whereas a mediator tries to
make the parties see their own interests and needs in a better light. This is also
understandable in this manner, unlike mediation where mediator's role is merely that of
facilitator; it is the parties that suggest, and ultimately reach, the solution to their
dispute. , the conciliator suggests grounds of compromise and resolution for the parties.
Conciliation and mediation both look to maintain an existing business relationship and to
rekindle a lost balance of power between two parties. These concepts are sometimes used
as synonyms, but they do indeed vary substantially in their procedures. In mediation, the
mediator controls the process through different and specific stages: introduction, joint
session, caucus, and agreement, while the parties control the outcome. By contrast, in
conciliation the conciliator may not follow a structured process, instead of administering
the conciliation process as a traditional negotiation, which may take different forms
depending on the case.
Conciliation is used almost preventively, as soon as a dispute or misunderstanding
surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is
closer to arbitration in the respect that it intervenes in a substantial dispute that has
already surfaced that is very difficult to resolve without "professional" assistance. The
parties approach mediation as an alternative method to resolve their dispute, due to the
fact that they both recognize that the conflict has grown potentially serious enough for

8
 litigation. Mediation may be used, however, any time after the emergence of a dispute,
including the early stages.
Mediation and Conciliation are two methods of conflicts resolutions in which a third-
party is involved. His role varies from one method to another. Unlike the conciliator who
has an active role in the conciliation process (e.g. he can propose a solution to end the
conflict), the mediator assists the parties throughout the mediation process to help them
find a solution to their dispute by themselves.
.However, judicial mediation is entrusted to a mediator, an external party to the
jurisdiction. The judge may appoint the mediator if the parties agree. The conciliation is
free for the parties. Mediation is a chargeable service.9
The other difference between mediation and conciliation is the degree of involvement by
the neutral and independent third party in the respective processes. While both processes
incorporate the principle of self-determination and are non-determinative processes,
conciliation allows the third party (the conciliator) to advise on substantive matters
through the issuing of formal recommendations and settlement proposals. In contrast,
mediation requires that the third party (the mediator) address process issues only and
facilitate the parties in reaching a mutually acceptable negotiated agreement.10
Rights Based v Interest Based Resolutions: Another important distinguishing feature
between mediation and conciliation can be found in an analysis between a rights based
approached to resolving a dispute and an interested based approach to resolving a dispute.
Interest-based dispute resolution processes expand the discussion beyond the parties
legal rights to look at the underlying interests of the parties, they also address parties
emotions and seek creative solutions to the resolution of the dispute. The focus of these
processes is on clarifying the parties real motivations or underlying interests in the
dispute with the aim of reaching a mutually acceptable compromise which meets the real
interests of both parties. It is generally accepted that mediation is a purely interest-based

9 http://www.cmap.fr/faq/what-is-the-difference-between-mediation-and-conciliation/?
lang=en

10 (2017) <http://www.lawreform.ie/_fileupload/reports/r98adr.pdf> accessed 12

April 2017.

9
 dispute resolution process. However, in conciliation, there can be a greater focus on the
legal rights on the parties as opposed to their underlying interests.11

Conclusion

It is evident that there exists a fundamental procedural difference between the role of the
conciliator and that of a mediator. The conciliator is a more active intervener, and may have
an advisory role on the content and the outcome of a dispute. A conciliator may make
suggestions, give expert advice and use intervention techniques that not only actively
influence the likely terms of an agreement, but also encourage all parties to settle. A mediator
on the other hand generally assist the parties to communicate with each other so that they can
identify, clarify and explore the issues in dispute before they consider their options to reach a
mutually acceptable negotiated agreement.12

DISTINGUISH BETWEEN ARBITRATION AND PRIVATE

JUDGING
PRIVATE JUDGE DEFINED
A private judge performs the same role as a courtroom judge, but instead of being assigned to
whomever the court clerk decides, the parties and their attorneys can agree upon a judge that

11 Ibid

12 Ibid

10
they feel is right for the case. Many people do not realize that judges are often inexperienced in
the area of law over which they preside.13

Whereas arbitration has been described as an apparently rudimentary method of settling

disputes, since it consists of submitting them to ordinary individuals whose only qualification is
that of being chosen by the parties.14 private judging as a method of resolving dispute that offers
accessibility to a fully staffed office of competent and compassionate legal professionals who are
ready and willing to assist with disputes as they arise15

APPEALABILITY
Unlike arbitration, any ruling by the Private Judge team is easier to appeal, because the same
standards apply as in traditional court. In arbitration there is lack of sufficient appellate
opportunities16, the rulings are nearly impossible to appeal. . This is the downside of nearly all
types of Arbitration be it binding or advisory arbitration .In fact it is supported by Arbitration Act
sections32A. Except as otherwise agreed by the parties, an arbitral award is final and binding
upon the parties to it, and no recourse is available against the award otherwise than in the
manner provided for by this Act. and 10. Except as provided in this Act, no court shall
intervene in matters governed by this Act. respectively. Due to the fact that there is right to
appeal a private judge decisions, judge tries as much as possible to follow substantive law while
making the decision for fear of his decision being appealed.

13 'Arbitration & Private Judging Faqs' (Russo & Prince, 2017)

<http://www.russoandprince.com/arbitration-and-private-judging/arbitration-and-private-
judging-faqs/> accessed 12 April 2017.

14 . (2017) <http://lexarbitri.pe/wp-content/uploads/2014/02/Overview-of-
International-Arbitration.pdf> accessed 11 April 2017.

15 'Arbitration & Private Judging Faqs' (Russo & Prince, 2017) op.cit

16 'Alternative Dispute Resolution' (Google Books, 2017)

<https://books.google.co.ke/books?

11
FAIRNESS
Arbitration process and results are private and so cannot be measured against the objective
standard of fairness.17 The secretive nature of the process makes it difficult to ascertain how
fairly the proceedings are conducted.18 Private Judging services are conducted in comfortable
private offices, the traditional court has a record of all filings in the case and the proceedings
must be open to the public, members of the public by law are permitted to attend but they rarely
do.19

DEVELOPMENT OF LAW
Beside arbitration lacking common rules of procedure and evidentiary, their decisions are also
not easily appealable which makes them underdeveloped thus, cannot promote the development
of new doctrines.

The fact that private judges decisions are entitled to appellate review is according to the
proponents a proof that it does not hinder the development of law. A judge aware of the
possibility of his decision being scrutinized will make a proper interpretation of the law.
Proponents also argue that because the decisions are appealable, there is no reason to give
decisions by private judges any less precedential value or think it will have a negative impact on
the development of law.20

17 'Alternative Dispute Resolution' (Google Books, 2017)

18 Jessica Corkery, 'In Arbitration, A Privatization Of The Justice System'

(Nytimes.com, 2017) <https://www.nytimes.com/2015/11/02/business/dealbook/in-
arbitration-a-privatization-of-the-justice-system.html> accessed 12 April 2017.

19 'Private Judging Smart Court' (Smartcourt.com, 2017)

<http://smartcourt.com/family-issues/private-judging/> accessed 12 April 2017

20 Cite A Website - Cite This For Me' (Lup.lub.lu.se, 2017)

<http://lup.lub.lu.se/luur/download?
func=downloadFile&recordOId=1558154&fileOId=1564559> accessed 20 April
2017.

12
DISTINGUISH BETWEEN OMBUDSMAN AND CONCILIATION
DEFINITION
Ombudsman can be defined as independent, impartial adjudicator of complaints about
maladministration in government departments and particular services in the public and private
sectors21or as individuals who rely on a number of techniques to resolve disputes. These
techniques include counseling, mediating, conciliating, and fact-finding. Usually, when an
ombudsman receives a complaint, he or she interviews parties, reviews files, and makes
recommendations to the disputants. Typically, ombudsmen do not impose solutions. The power
of the ombudsman lies in his or her ability to persuade the parties involved to accept his or her
recommendations. Generally, an individual not accepting the proposed solution of the
ombudsman is free to pursue a remedy in other forums for dispute resolution.22 Whereas
Conciliation Can be used to describe a process where the neutral takes a relatively activist role,
putting forward terms of settlement or an opinion on the case.23 It may as well involve building a
positive relationship between the parties to a dispute. A third party or conciliator (who may or
may not be totally neutral to the interests of the parties) may be used by the parties to help build
such relationships.

COMPOSITION OF CONCILIATION PANEL AND OMBUDSMAN TEAM

Whereas conciliation panel is to be composed in accordance with the wishes of the parties,
commissioner and other members of ombudsman are appointed according to law and
parties has no power to determine or influence who investigates their matter.

21 'Centre For Effective Dispute Resolution : CEDR : Glossary Of Terms' (Cedr.com,

2017) <https://www.cedr.com/about_us/library/glossary.php> accessed 12 April
2017.

22 (2017) <https://www.opm.gov/policy-data-oversight/employee-
relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf>
accessed 12 April 2017.

23 Ibid

13
CONSENSUS
In reconciliation, the parties must consent on whether to refer it to the conciliation whereas
in ombudsman, the parties injured by administrative action refer the matter to Ombudsman
without informing the adverse party. In Kenya National Assembly discussion that gave birth
to the creation of office of ombudsman in Kenya, the Attorney General submitted that he
gets a total of 50 letters daily from Kenyans seeking all manner of assistance.24

24 'Kenya National Assembly Official Record (Hansard)' (Google Books, 2017)

<https://books.google.co.ke/books?
id=hD8wFaE4xG8C&pg=PA2465&lpg=PA2465&dq=how+is+members+of+ombuds
man+members+determined+in+kenya?
&source=bl&ots=jhZiWo1l1b&sig=U5P5eIht-
D7gD3urtU8M5gcWyI8&hl=en&sa=X&redir_esc=y#v=onepage&q=how is members
of ombudsman members determined in kenya?&f=false> accessed 28 April 2017.

14
DISTINGUISH BETWEEN EARLY NEUTRAL EVALUATION AND
TRADITIONAL DISPUTE RESOLUTION MECHANISMS.
DEFINITION
ENE may be defined as a forum in which attorneys present the core of the dispute to a neutral
evaluator in the presence of the parties. This occurs after the case is filed but before discovery is
conducted. The neutral then gives an assessment of the strengths and weaknesses of the case. If
settlement does not result, the 4 neutral helps narrow the dispute and suggests guidelines for
managing discovery.25 It uses a neutral or impartial third party to provide a non-binding
evaluation, sometimes in writing, which gives the parties to a dispute an objective perspective on
the strengths and weaknesses of their cases. Under this method, the parties will usually make
informal presentations to the neutral to highlight the parties' cases or positions.26Whereas
traditional dispute resolution mechanisms may refer to those mechanisms that have been
practiced by communities since time immemorial and passed from one generation to the other.
The mechanisms must have had a long, tried and tested history.27

INCORPORATION IN THE CONSTITUTION

Whereas Traditional dispute resolution mechanisms (TDRM) are now well entrenched in Article
159 of the Constitution of Kenya, 2010 (hereinafter, the Constitution) and are to be promoted
by the courts and tribunals established thereof, early neutral evaluation is not provided under any
Kenyan law therefore, enforcing it might be next to impossible.

25 (UT Code 6-2-202). Minnesotas State Supreme Court Rule 114

26 (2017) <https://www.opm.gov/policy-data-oversight/employee-
relations/employee-rights-appeals/alternative-dispute-resolution/handbook.op.cit

27 (2017) <http://www.strathmore.edu/sdrc/uploads/documents/books-and-
articles/Paper on Traditional justice terminology.pdf> accessed 17 April 2017.

15
RELATIVE VS. CONSTANT
Whereas early neutral evaluation have similar structures and name across all regions and
countries where it is practiced like in England, America and wales, Traditional dispute resolution
mechanisms on the other hand, differs from one ethnicity or tribe to another. There may have
been similar structures across most ethnic communities, for example the council of elders.
However, they have had different names across different tribes and their roles and mechanisms of
resolving disputes were subtly different according to the circumstances of individual tribes.
Examples of names for council of elders include the kokwo of the Pokot, Nabo of the Samburu
and Marakwet, tree men of the Turkana, Njuri Ncheke of the Meru, Jodongo for Luos, and
Kiama of the Kikuyu.28

SOCIETY WHERE EACH OF THEM IS RELEVANT, RURAL VS. URBAN

AREAS
From general characteristics of early neutral evaluation, we conclude that it can mostly be
relevant in urban areas where expertise are available and where people are individualistic and
only aim at winning and care less about the future relationship while TDRMs are relevant in
rural areas. This argument have received official stamp from various scholars including
Dr.Karuiki Muigua when he said that traditional dispute resolution mechanisms may be stronger
in communal societies such as rural areas compared to urban areas where the dispute resolution
mechanisms are individualistic, self-interested and are not aimed at maintaining relationships.29

ORIGIN, EUROPE VS. AFRICA, SUBJECTION TO REPUGNANCY TEST

Despite the fact that both early neutral evaluation and traditional dispute resolution mechanisms
are customary dispute resolution mechanisms, the customary dispute resolution is a wider term
that embraces methods of dispute resolution that fall under traditional dispute resolution
mechanisms and those that may not fall under traditional dispute resolution mechanisms.30 This
difference is quite important since it determines which method will be subjected to repugnancy
test and the origin of such method TDRMs seems to have developed in primitive area,
28 Ibid

29 Ibid

30 Ibid

16
particularly Africa whereas early neutral evaluation (ENE) is an expedited dispute resolution
process that was developed in California 20 years ago (Brazil, 1990; Brazil, Kahn, Newman &
Gold, 1986)31 in 1982, when Robert Peckham, chief judge of the federal district court for the
Northern District of California, appointed a task force to explore ways to reduce litigation costs
for litigants which the subcommittee forged a truly unique, hybrid process that it labeled early
neutral evaluation.32 Under Article 159(2) (c) TDRMs are considered as some of the methods
alternative dispute resolution mechanisms that court need to promote as a guardian of the
constitution, however, under sub-Article 3(b), traditional dispute resolution mechanisms are not
to be used if they are repugnant to justice and morality.33 This means that TDRMS are
mandatorily subjected to the test of repugnancy while it cousin the early neutral evaluation,
because of its origin It would also mean that community and certain customary dispute resolution
mechanisms not based on African customary law, may not fall into the traditional pigeonhole and
are therefore not subject to the limitation under Article 159 (3) of the Constitution.34 Some had
suggested that an absence of provisions in law providing for the use of early neutral evaluation
need not be a bar to making use of ENE in various courts. This shows that the ENE method mar
be used expressly without being subjected to repugnancy test due to its origin.35

MANDATORY NEED FOR SPECIALIST KNOWLEDGE AND SKILLS

In TDRMs Elders resolve disputes due to their long experience, wisdom and the respect they are
accorded in society36, methods used in acquiring such skills were relative from society to society
31 (2017). [online] Available at: http://www.crilf.ca/Documents/Early%20Neutral
%20Evaluation%20Processes%20in%20Alberta%20-%20Oct%202016.pdf [Accessed 17 Apr.
2017].

32 Ibid

33 The Constitution of Kenya 2010

34 (2017) <http://www.strathmore.edu/sdrc/uploads/documents/books-and-
articles/Paper on Traditional justice terminology.op.cit

35 (2017). Its never too late for Early Neutral Evaluation (ENE) | Brodies LLP. [online]
Available at: http://www.brodies.com/node/7656 [Accessed 17 Apr. 2017].

36.Ibid note 6

17
through informal education. On the other hand, in early neutral evaluation, a neutral person with
specialist knowledge and skills is invited to evaluate the case or any particular issues in it.37These
skills were acquired through formal education in various fields.

BINDING AND NON-BINDING RESULTS

TDRMs is a school of different methods of dispute resolution with some not requiring the
intervention of third parties like negotiation, some requiring neutral third parties whose decisions
are binding to the parties to the dispute while others only require third parties to facilitate the
talks and their view might only be persuasive. While non-binding facilitator in some of the
methods under the umbrella of TDRMs may be similar with neutral third parties in ENE, where
evaluation is not binding, but is made available to both parties to consider.38 The methods
embraced by TDRMs whose results are binding and those that do not require third parties to
intervene provide a point of departure to various destination of TDRMs and ENE.

PRELIMINARY VS. MAIN METHODS OF NON-JUDICIAL DISPUTE

RESOLUTION PROCEDURES
Early neutral evaluation processes are generally considered to be a preliminary step in a
continuum of different non-judicial dispute resolution procedures that include negotiation,
mediation, collaborative processes, settlement conferences and arbitration (Shaw, 2014).

WITH BAGGAGE VS. WITHOUT BAGGAGE

According to Blackman (2008), there is a certain amount of baggage associated with any
dispute resolution process, therefore, traditional dispute resolution are expected to have certain
amount of baggage. To prove his point, he attempts to provide example of two methods under
traditional dispute resolution mechanisms and their baggage as follows; in mediation, the
baggage is primarily emotional in that it requires participants to acknowledge that they are there
to settle the case, often presenting a psychological barrier to its use. In arbitration proceedings,
because arbitration is an adjudicative process, the baggage lies in the risk of reaching an adverse

37 (2017). Early Neutral Evaluation. [online] Available at: http://www.hardwicke.co.uk/about-

us/adr/early-neutral-evaluation [Accessed 17 Apr. 2017].

38 Ibid

18
resolution. In TDRMs the baggage is to retain the social ties that binds the society together.
However, Blackman (2008, p. 7) describes neutral evaluation processes as having neither the
settlement baggage of mediation, nor the adjudicative baggage of arbitration.39

COST
Cheap vs. relatively cheap.

Though all the ADR methods are considered to be cheap, TDRMs is the cheapest of
all. Kenyatta also documents that among the Gikuyu people an elder in a
community renders his services freely. In this regard he observes as follows:

He receives no remuneration in the way of a salary, but helps the community with
his advice and experience in the same way as he directs the management of his
own homestead and family group. In recognition of these services he receives public
tributes ceremonially, and is regarded specifically as the father and officiating priest
of the community.40

On the other hand, there is a cost for an ENE. The cost varies from county to county.
But, the cost of an ENE is often far less than the cost of going to court. If you have a
low income there is a sliding fee scale to help. If the court has waived your filing fee
some counties may waive your ENE fee.41Even where filing fee were waived, the
parties were obliged to pay the evaluator.

39 Ibid

40 Ibid note 6

41 (2017) <http://www.lawhelpmn.org/files/1765CC5E-1EC9-4FC4-65EC-
957272D8A04E/attachments/06F9454A-F896-E521-812D-3436DF8A70BB/f-9-
enes.pdf> accessed 28 April 2017.

19
20