When a dispute cannot be settled through ordinary negotiation, you have a choice about how to resolve it. Going to court is the path most people know, but alternative dispute resolution (ADR) — chiefly arbitration and mediation — is often faster, cheaper and more private. Understanding the trade-offs helps you choose the right route.
What litigation offers
Litigation is the formal court process. It is well suited to disputes that need a binding, enforceable judgment, where a party will not cooperate, or where a point of law needs to be authoritatively decided. Courts can compel attendance and disclosure, and judgments are enforceable through established mechanisms. The trade-off is that litigation can be slower, more public, and more expensive, and the outcome rests entirely with the court.
What ADR offers
ADR covers several processes, the most common being:
- Mediation — a neutral mediator helps the parties reach their own settlement. It is voluntary, confidential and relationship-preserving, and nothing is imposed.
- Arbitration — a private tribunal hears the dispute and issues a binding award. In Kenya, arbitration is governed by the Arbitration Act, and awards are generally enforceable much like judgments.
ADR is often quicker and more flexible than court, keeps commercial matters out of the public eye, and lets the parties keep more control over the process and, in mediation, the outcome.
How to choose
There is no single right answer — it depends on the dispute. Consider:
- Cost and time: ADR is frequently faster and less costly.
- Privacy: ADR is confidential; court proceedings are generally public.
- Relationship: mediation can preserve a business or family relationship litigation would strain.
- Enforceability and finality: court judgments and arbitral awards are both enforceable; a mediated settlement depends on the parties honouring it.
- The other side: ADR needs a minimum of good faith; an evasive opponent may leave litigation as the only realistic option.
Many contracts now include a dispute-resolution clause that sets the route in advance, so it is worth checking what your agreement already says.
Get the strategy right early
The best time to think about how you would resolve a dispute is before one arises — and, once it has, the earlier you take advice, the more options you keep open. Our Litigation & Dispute Resolution team advises on strategy, represents clients in court, and handles arbitration and mediation to get a practical, durable result.
This article is general information about the law in Kenya and is not legal advice. For guidance on your specific situation, book a consultation with a qualified advocate at Maiyo & Mbugua Law Advocates LLP.