Litigation is not the only option. Mediation and arbitration can save time, money and relationships — here is how to decide.
Many people assume that every dispute must end in court. In fact, Article 159 of the Constitution directs courts to promote alternative forms of dispute resolution — including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
Mediation
In mediation, a neutral mediator helps the parties negotiate their own solution. The mediator does not impose a decision. Kenya’s courts run a court-annexed mediation programme for suitable cases, and a settlement reached in mediation can be adopted as an order of the court.
- Best for: family, land, business and neighbour disputes where the parties will continue to interact.
- Benefits: confidential, faster, cheaper and less adversarial.
Arbitration
In arbitration, the parties appoint an arbitrator who hears the evidence and makes a binding award. Arbitration in Kenya is governed by the Arbitration Act, 1995, and many commercial contracts contain an arbitration clause.
- Best for: commercial and construction disputes, especially where technical expertise or privacy is important.
- Benefits: parties choose the decision-maker, proceedings are private, and awards can be enforced through the High Court.
When court is the better option
Litigation may be necessary where urgent orders such as injunctions are needed, where the other side refuses to engage, where a legal principle must be established, or where there is a significant imbalance of power between the parties.
Our advice
The right path depends on your goals, the strength of your case, the relationship between the parties and the costs involved. We help clients weigh these factors and represent them effectively in negotiation, mediation, arbitration and court.
