ALTERNATIVE DISPUTE RESOLUTION IN ENHANCING GOVERNANCE & REPUTATION ICPSK SEMINAR ON BUILDING CORPORATE REPUTATION THROUGH GOOD GOVERNANCE HELD ON 26 – 27 FEBRUARY 2015 AT SERENA BEACH RESORT & SPA, MOMBASA. ALTERNATIVE DISPUTE RESOLUTION IN ENHANCING GOVERNANCE & REPUTATION Presented by: CS. JACQUELINE WAIHENYA MAINA Advocate, Commissioner for Oaths & Notary Public, CPS(K), MCIArb [Arbitration & Adjudication], CPM-MTI [Mediation] 0725519058 /+254 - 041 2311060 waihenya@jwmadvocates.com/ jackeewmaina@gmail.com

Governance Corporate Governance has been defined as the system by which corporations, companies or organizations are directed controlled and held to account. It can also be defined as the manner in which the power of, and power over, a corporation is exercised in the stewardship of its assets and resources so as to increase and sustain shareholder value as well as satisfying the needs and interests of all stakeholders.

Corporate Reputation: Companies' reputations are coming under attack from "small-scale adversaries in command of a surprisingly potent new- media and social network arsenal, viz., blogs, tweets, text messages, online petitions, Facebook protest sites, and digital videos".

Corporate reputation will be affected adversely arising out of:- Employer - Employee Conflict; Employee - Employee Conflict; Boardroom Conflict; or Regulator Actions.

Cost of Conflict:

Surveys by The Center for Creative Leadership and Eckerd College in St Surveys by The Center for Creative Leadership and Eckerd College in St. Petersburg, Florida indicate that managers spend between 20 and 40 percent of their time dealing with conflict.

Direct costs of conflict are generally observable, measurable and accrue over time. Let’s take the following example of the cost of losing a single mid- level employee due to conflict within a hypothetical organization, applying the Dana Cost Calculator from figures generated by HR Magazine in February 2003:   employee’s annual salary: $80,000; multiply by 1.4 (140%) as the investment you have in the employee: $112,000;  multiply by 1.5 (150%) as the cost of replacing the employee: $168,000;  multiply by .6 (60%) average role of conflict in voluntary terminations: $100,800.  Now, multiply times the number of voluntary terminations in your organization annually. Say you have a 10% turnover rate in a company of 100 employees that’s 10 employees. 10 X $100,800 = $1,008,000. 

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What is ADR? The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale Court processes.

ADR Mechanisms: ADR systems may be generally categorized as:- Negotiation; Conciliation; Mediation; or Arbitration.

Legal Framework for ADR in Kenya Applicable legislation for application of ADR in Kenya includes:- The Constitution of Kenya, 2010; The Arbitration (Amendment) Act, 2009 (Kenyan); The Civil Procedure Act Cap 21 (Laws of Kenya) See Order 46

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What can ADR do? Within the context of rule of law initiatives, ADR programs can: Support and complement court reform; By-pass ineffective and discredited courts Increase popular satisfaction with dispute resolution Increase access to justice for disadvantaged groups; Reduce delay in the resolution of disputes; Reduce the cost of resolving disputes.

Limitations of ADR ADR Programs may be ineffective or even counterproductive in serving some rule of law objectives. ADR is not an effective means to:- Define, refine, establish & promote a legal framework; Redress pervasive injustice, discrimination or human rights problems; Resolve disputes involving disputants or interested parties who refuse to participate in the ADR process.

4th January 2015

A Case Study: Digital Migration Standoff 11th January 2013

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