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Abstract

Abstract

Alternative dispute resolution (ADR), the process of employing a third party, outside of the state apparatus, to help resolve disputes between opposing parties, has been used on the African continent for hundreds of years. In Kenya, the focus of the current study, ADRs have included mediation, negotiation, and arbitration. To have a better understanding of why Kenyans are embracing mediation instead of the formal courts to resolve disputes, the study relies on the legal pluralism theoretical framework and the results of a study that employed two ethnographic techniques – interviews and participant observation – from three Kenyan counties: Makueni, Kitui, and Machakos. Based on interviews conducted by the first author with 52 mediators (e.g., chiefs, elders, and the clergy) and 10 jurists in Nairobi, and also direct observations of 31 ADR cases (e.g., land disputes, inheritance issues, and unpaid debts, etc.) from January to June 2023, several themes emerged as central to the success of the mediation process: expediency, cost efficiency, accessibility/convenience, transparency, congeniality, satisfaction, and harmony. For example, expediency was vital to contesting parties’ satisfaction with ADR, as courts are slow to resolve conflicts. Cost effectiveness meant that even the penurious could have their cases heard. The implications of our findings for mediation, public policy, and future research are addressed.

Key words: Alternative Dispute Resolution; Legal Pluralism; Mediation; Kenya

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