About Jacqueline Waihenya Jacqueline Waihenya is an advocate of the High Court of Kenya and managing partner of JWM Law LLP. Jacqueline is an ADR Expert and a Chartered Arbitrator of the Chartered Institute of Arbitrators (C.ARB/ FCIARB), an International Federation of Consulting Engineers FIDIC Legal Professional and a member of the Dispute Resolution Board Foundation (DBRF). She is also a member of the Adjudication Society (London) and its Women in Adjudication branch. About JWM Law LLP JWM Law LLP is a full service corporate law firm based in Kenya. The firm’s staff handle a wide array of litigation, alternative dispute resolution, corporate governance and other legal matters. The firm also closely monitor events and trends and has developed a strategic sense for their dynamics and direction. Contact Jacqueline Waihenya Managing Partner JWM Law LLP Moi Avenue, Jubilee Arcade, Third Floor – Office Suite No.13, Mombasa, Kenya E: waihenya@jwmadvocates.com www.jwmadvocates.com As far as mediation goes, what models are typically used? Kenyan law favours the traditional facilitative mediation model, which can be gleaned from the definition adopted by Act No.12 of 2012. Practically all training institutions train mediators using this model, and where mediators have departed from this in resolving disputes this has formed the basis for challenge in courts. As such, evaluative mediation is not encouraged. Personally, I aim for transformative mediation models where possible, as this lends itself to long-term resolution. In the majority of mediations that I have handled, the time constraint has demanded a facilitative approach. What work are you and other practitioners doing to increase the provenance of ADR throughout the country? As Vice Chairperson of the Chartered Institute of Arbitrators Kenya Branch I chaired a taskforce which brought together the mediating community in our first CIARB Mediation Conference in October 2022 under the theme: ‘The Coming of Age for Mediation: Encounter from Africa’. This attracted over 200 delegates in addition to speakers and representation from the Kenyan judiciary, academics, CIARB, NCIA, mediating institutions and individuals from Kenya, Uganda, Rwanda, Tanzania and the UK. The Law Society of Kenya and East Africa Law Society were also present. It provided a platform to share experiences and discuss emerging issues. On a more personal level, what was it that drew you to specialise in ADR in your legal practice? I was introduced to arbitration during my pupillage from the perspective of counsel and as they say, one tends to follow in the footsteps of their pupil masters. However, it took me over a decade of practice to take the plunge and acquire formal introduction into arbitration and then mediation and construction adjudication in quick succession. As most ADR professionals will confess, that initial immersion was like a breadth of fresh air. It took determination to unlearn many of the sins that litigation lawyers tend to acquire in the course of adversarial practice, and the journey has been one of self-reflection compounded by the varied responses that I have received from parties depending on the type of ADR at hand. Today, I am a Chartered Arbitrator (CIARB), Chartered Mediator (ICMC) and Certified Advanced Construction Adjudicator (CIARB) living the multidoor dispute resolution dream. I have undertaken practical training with FIDIC at Kings College London and locally in Kenya and I am at the tail end of a second LLM master’s degree in International Dispute Resolution. As a neutral in arbitration, mediation and construction adjudication I have had the opportunity to resolve disputes that have been international or domestic in nature. I believe that each dispute lends itself to a suitable dispute resolution mechanism and I have therefore taken the time to consistently increase my knowledge in arbitration, mediation and construction adjudication. In this way, I equip myself with the right set of tools to engage the appropriate dispute resolution mechanism for each dispute at hand. My journey so far has taken me to the International Mediation Institute (IMI) where I am a Certified Mediator and more recently to the inaugural FIFA Accredited Mediators. I have had a great opportunity to have a front row seat to the ADR that works and I continue to mediate and adjudicate. I have also had several opportunities to engage in scholarship in mediation, construction adjudication and arbitration by writing articles as well as organising and addressing domestic and international conferences and workshops on the same. THOUGHT LEADER 69
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