Photo courtesy of African Arbitration Atlas
Did you know that law is so vast that there are alternative ways to settle disputes other than the traditional litigation settlement where you go to court? I did not know this until the time I went for an ICC conference in Nairobi.
Initially, I was sent to go and meet Njeri Kariuki, the very first chartered female arbitrator in Kenya. She was giving a talk at the conference about the benefits of arbitration and alternative dispute resolution. To my amazement there were other bigwigs such as former Attorney General Prof. Githu Muigai, Senior Counsel Kamau Karori, and ICC Kenya Commissioner on ADR and Arbitration Aleem Visram who were also giving their thoughts on arbitration.
My fascination, however, was with Njeri Kariuki and especially on how her consistency has led her to break the glass ceiling for female arbitrators in Kenya. After the conference I approached her and as calm as she normally is, she responded positively to me. I introduced myself and after a brief talk we exchanged contacts.
Over the course of my career I have learnt a very simple lesson; always strike while the iron is hot. When I left the conference I texted her on my way home. I told her that it was a pleasure to meet her. In the text I also let her know that I would like to have a sit-down with her to talk about her prestigious long-standing career in arbitration.
I didn’t expect her to respond promptly because I knew she was a busy person and secondly, I was a stranger. As a stranger you learn not to be entitled. Therefore you have minimal expectations if any. But I was surprised. No, I was shell-shocked when she responded to my messages immediately. She texted with so much enthusiasm you would have thought we had known each other for a good number of years.
Njeri graciously granted me -a young unknown journalist- audience in her office at the CBD in Nairobi. The advocate is an affable, calm, down-to-earth but firm woman. She started her career in 1992. Her boss then, pushed her into arbitration roles and she noticed that she loved peaceful and calm settling of disputes.
She rose through the ranks owing to her aggressive pursuit of her career and was made partner. Later on, she ventured on and started her own firm Njeri Advocates in the office where she still sits at Hughes building in Nairobi till today. If resilience, patience and consistency were a person, Njeri personifies all those traits so appropriately.
Through conversations she walked me through her journey and how she had to wait for at least fifteen years to be chartered by the Chartered Institute of Arbitrators. That is where I learnt that for you to become a chartered arbitrator you really have to prove your salt and worth. There are tons of hurdles and qualifications that one has to go through.
You begin by becoming an associate whose qualification is six months of experience in dispute avoidance or dispute management. You’ll also need a recommendation letter from a CIArb member.
The second stage is member. You need “Five years’ experience in arbitration, construction adjudication or mediation in a lead/sole capacity; including settlement agreements, the management of proceedings, and attending hearings which have resulted in the publication of a reasoned award or decision and have been a party representative in at least five (5) arbitrations/mediations/adjudications,” writes the CIArb.
Finally, you graduate to becoming a fellow whose qualifications topple all the others. You need a minimum of ten years in ADR as a sole arbitrator. You also need experience in writing decisions and final arbitration awards in the capacity of a sole arbitrator or tribunal member. Additionally, copies of published awards you’ve written as a sole arbitrator of a tribunal have to be presented. Last but not least you need reference letters from CIArb fellows who have firsthand experience of you in the role of dispute resolver, party representative or Arbitrator.
Njeri was focused and determined to get to that status of a chartered arbitrator. Her eyes were fixated on the prize. After a gruesome more than sixteen years she finally got the enviable certificate in 2008. The very first Kenyan woman to achieve such a feat. It took another six years for other women to become chartered arbitrators.
What inspired me most was the fact that she did all that while juggling so many things in her life. She is the mother of three children whom she was determined to raise herself. When you go into her office you see paper cuttings and drawings of her children’s assignments.
They are affixed on her desk. I asked about the drawings. “I have a very strict work schedule. On weekends I don’t work. But when my kids were young there were times I was forced to come to the office. Since the weekends belonged to my family I ensured that I carry them to work with me. Therefore I would allow them to draw and make shapes with papers to keep them busy as she worked.
This whole time she was also running a business and even studying but she somehow made them all work together. I asked her why she preferred being an arbitrator instead of being a traditional advocate who argues cases in court. Her response was so profound it remains etched in my mind.
Kariuki said that representing someone in court entails talking and being on the defense like you’ve gone to war. One wins while the other loses. Either the defense or the prosecution wins. However, arbitration or dispute resolution entails listening and ensuring that the dispute ends in a win-win situation.
It is also cheaper because Njeri says in litigation, lawyer fees make up 80% of costs. In ADR, you pay the arbitrator who is the private judge and your lawyers may or may not be present. The arbitrator who presides over the arbitration checks the merits and demerits of the case and formulates the verdict. This verdict is referred to as an award in the arbitration world.
Arbitrations could take anywhere between three days and sometimes months. Therefore the cases take a shorter time than traditional litigation.
