When most people think about arbitration, they picture a room full of lawyers arguing before a retired judge. This mental image, while common, misses a fascinating reality about arbitration that many businesses don't fully grasp.
Your arbitrator doesn't need a law degree. Neither does the person representing you.
This isn't a loophole or recent development. Kenya's Arbitration Act deliberately keeps the door wide open for non-lawyers to participate fully in the process. The reason is simple: disputes often require expertise that goes far beyond legal knowledge.
Consider this scenario. Your construction company faces a dispute over foundation defects. You can choose between two arbitrators: a retired High Court judge with 30 years of legal experience or a structural engineer with 20 years of building experience who also happens to be a qualified arbitrator.
The judge understands legal precedent and procedure perfectly. The engineer understands soil conditions, concrete mix ratios and structural integrity intimately. When your dispute centres on whether the foundation meets engineering standards, which expertise serves you better?
Smart construction companies increasingly choose the engineer. They understand that technical disputes need technical minds. A qualified engineering arbitrator grasps the core issues immediately, asks the right questions and makes informed decisions based on industry knowledge rather than legal theory alone.
Financial disputes present similar opportunities. When disagreements involve complex accounting standards, valuation methods or financial projections, a qualified accountant delivers better results than traditional legal representation.
Professional accountants understand financial statements intuitively. They spot discrepancies that lawyers might miss. They speak the same language as financial directors and auditors.
Most importantly, they focus on numbers and business reality rather than legal technicalities. These professionals combine technical financial expertise with arbitration training, creating powerful advocates who understand both the substance and the process.
The beauty of arbitration lies in its flexibility. Retired CEOs make excellent arbitrators for commercial disputes because they understand business pressures and market realities.
Former engineers excel in technical disputes. Banking professionals bring valuable insight to financial services conflicts.
This approach benefits everyone involved. Parties get decision-makers who understand their industries. Disputes resolve faster because arbitrators grasp technical issues immediately. The process becomes more focused on solving problems rather than navigating legal complexity.
The key requirement isn't legal training but relevant expertise combined with arbitration knowledge. Professional engineers, architects, quantity surveyors, accountants and industry specialists can all qualify as arbitrators or representatives.
Most professional bodies now offer arbitration training for their members. The Chartered Institute of Arbitrators provides such courses. These programmes teach arbitration procedure while leveraging existing technical expertise.
The result creates arbitrators who combine deep industry knowledge with procedural competence. They understand both the technical substance of disputes and the arbitration process itself.
Successful businesses match their arbitrator's expertise to their dispute's nature. Construction conflicts need construction professionals. Financial disputes benefit from financial experts. Technology disagreements require technical understanding.
This doesn't mean lawyers lack value in arbitration. Legal expertise remains crucial for complex contractual interpretations and procedural guidance. However, the best arbitration teams often combine legal and technical expertise rather than relying solely on legal training.
Here's another compelling reason to choose expert arbitrators: while any arbitrator can retain technical experts to assist the tribunal, having the expertise built into the arbitrator eliminates this extra step entirely.
Instead of paying for both an arbitrator and a separate expert consultant, you get both roles in one qualified professional. This approach saves substantial costs while streamlining the entire process.
More importantly, expert arbitrators often achieve better outcomes because they make decisions based on industry knowledge and practical experience rather than purely legal considerations.
The next time you face arbitration, consider your options carefully. Ask yourself what expertise your dispute really needs. Do you need someone who understands legal precedent or someone who understands your industry?
Better yet, plan ahead. Smart businesses include expertise requirements directly in their arbitration agreements. Instead of hoping for the right arbitrator later, specify upfront that disputes must be resolved by qualified engineers for construction matters, accountants for financial disputes or relevant industry professionals for sector-specific conflicts.
This proactive approach ensures you get the right expertise when you need it most.
The answer might surprise you. Your best arbitrator could be the quantity surveyor who understands your project, the accountant who grasps your financial challenges or the industry veteran who has faced similar problems.
Arbitration works best when expertise meets opportunity. Sometimes that expertise comes from the courtroom. Sometimes it comes from the construction site, the accounting office or the boardroom.
The choice, thankfully, is yours.
The writer is a Partner and Head of Dispute Resolution, Maina & Onsare Partners Advocates.
