Alternative Dispute Resolution Mechanisms and Management of Case Backlog in the Family Division of the Judiciary of Kenya
Otindo, Mary Anjao
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Scholarly evidence on the effect of alternative dispute resolution (ADR) mechanisms on management of case backlog in the family division is non-existent. The Kenyan Constitution and the 2019 -2023 strategic plan for the Judiciary identifies improved case management and quick delivery of justice as a very important result area for Kenya’s Judiciary. Judiciaries world over identifies ADR as a tool towards reduction of case backlog. The Article 159 (2) of Kenya’s Constitution, 2010, identifies ADR as a way to fasten the process of resolving disputes among parties and maintaining an amicable relationship. In the year 2016, Judiciary piloted the use of court-annexed mediation at the family and commercial divisions of the Judiciary. Many people continue to prefer court litigation as opposed to ADR. There is limited literature and evidence on what factors, if put in place would contribute to ADR being an effective tool of managing case backlog at the Judiciary. In order to answer this question, the study sought to find out the effect of cost of ADR, community awareness, stakeholder involvement, case turnaround time and case categorization in ADR and management of case backlog at the family court division of the judiciary. The Theories of Conflict Transformation and the Theory of Justice are the guiding theories for this study. Descriptive study design was used. The target population of this study were 87 court users in the family division of the judiciary in Nairobi and Nakuru. Data collection was performed using a semi-structured questionnaire. Data were analyzed in descriptive statistics and qualitative data was analyzed in subject analysis. The researcher sought the approval from the graduate school board of Kenyatta University, NACOSTI and from the Chief registrar of the Judiciary before carrying out the study. The Respondents were informed about the study and their informed consent sought before the questionnaire was administered. Their privacy, dignity and confidentiality was guaranteed. Participation was voluntary and no force was used. The study found that 36% agreed that the activities of non-judicial organizations in adoption of alternative dispute resolution mechanisms are acceptable. Most of the respondents, 77% agreed that the cost of litigation was higher than that of ADR. About 77% of the respondents revealed that they have interacted with ADR processes at the family court division with 65% agreeing that slow handling of cases arose from manual records that contributed to longer case turnaround time at the courts. The study concluded that the cost of ADR is lower than that of litigation. It was apparent that court users were not aware of the programs conducted by Judiciary of Kenya, NGOs, FBOs, CBOs or the governments on ADR. The study also found that most respondents have never been part of the ADR processes at the family court division. Yet, for those who have participated reported not to have been satisfied with the process of stakeholder involvement and procedures used. The study also found that the different case categories do not contribute to individuals’ use or disuse of other mechanisms to resolve disputes. The study recommends that there is need to develop a mandatory screening and case categorization in order to identify suitable cases for ADR before court processes begin. It is also recommended that sufficient resources be allocated to ADR department. Court leaders should consider raising public awareness and involvement in the importance of Alternative Dispute Resolution mechanisms. Awareness should therefore be created among the members of the community to provide adequate and relevant information on ADR as a dispute resolution mechanism.