Mediation as an Alternative Dispute Resolution process in Kenya has come of age since its adoption on a pilot basis by the Judiciary in 2016 whereby initially it was domiciled in the family and commercial divisions of the High Court. Currently, most courts have fully institutionalized mediation as court-annexed mediation. The judiciary has further incorporated private mediation through the publication of a legal framework notice outlined by Articles 159 (c) of the Constitution of Kenya 2010, Section 59D of the Civil Procedure Act, and Part III Court Annexed Mediation rules (Legal Notice 145 0f 2022). Matters referred for mediation include family disputes, commercial disputes, child upkeep, succession disputes, and labor disputes among others.
Mediation is described as assisted negotiation where the parties employ communication skills to arrive at an agreement. Furthermore, the concept of informal consent to participate in mediation underscores the need for participants to understand the nature of the contemplated mediation process and effectively consent to participate in the described process, virtually showing that the mediation process is possible and appropriate.
As a Certified Professional Mediator and accredited by the judicially Mediation Accreditation Committee, I have been assigned matters for mediation by the various registries in my area of jurisdiction. From my experience and encounter with parties referred to or who had requested for mediation on their disputes I have come to note people who participate and understand mediation have a lot of appreciation of the results of the process. When a matter is referred for mediation, the mediator is expected to contact the parties through the lawyer if present, or mobile contact. When you contact the parties and explain to them what mediation is, what is expected of them during the process, and their role in decision-making, the majority of the parties are optimistic that their dispute is to be resolved at long last after the matter has been in court for years. The following are some of the notable attitudes towards the mediation in Kenya.
Parties in dispute resort to mediation not just to win a dispute they encounter with the other party but out of the need to confidently figure out the best solutions to enable them to move forward. Other times they want to be heard and collaboratively work with the mediator and the other party to see whether a mutually acceptable set of arrangements to resolve the dispute and move on.
The key qualities of the mediation process namely voluntariness, collaboration, personal control, confidentiality, and informed decision-making ensure that the participants always retain decision-making power. Other features of mediation include no strict adherence to rules of procedure, expeditiousness, less formality, confidentiality, and parties’ control of the content while the mediator controls the process.
Other descriptive terms that are used while talking about mediation include impartiality, neutrality balance, and safety. These describe a situation whereby the mediator has an equal and balanced responsibility to assist each mediating party and cannot favor any one party over the other, nor should the mediator favor a particular result in the mediation. The mediator’s role is to ensure that parties reach an agreement in a voluntary and informed manner, not as a result of coercion or intimidation.
The process further ensures self-responsibility and satisfaction of the parties which is amplified through active participation and voluntariness in resolving issues. This results in the participant’s satisfaction and likelihood of compliance which elevates the mediation compared to court options.
From the above, it is evident that there are opportunities for the citizens to benefit from the adoption of Mediation as an alternative to resolve disputes. Foremost the adoption has enabled Kenyans to have equal access to justice. Private mediation has also opened opportunities for ease of doing business through access to justice by reaching consensus outside the courts, empowering individuals to exercise their legal rights in the civil justice system without regard to procedural technicalities, and allowing parties to participate in mediation on their terms and decide on the rules and procedures to govern the process. At the same time, private mediation can better accommodate the parties in conflict both in time and accessibility as long distance parties can participate in mediation virtually.
There is also client satisfaction that is evidenced by the flexibility, voluntariness, informality, and autonomy of the process itself. Mediation helps restore broken relationships as it has the ability to help parties in dispute to restore, redefine, and transform their interactions, perceptions, and attitudes towards each other, resulting in the goal of reconciliation and promoting peaceful relationships in their day-to-day interactions with family, community, and business.
The outcome of a mediation process that results in a settlement agreement means that it becomes binding and ensures that mediation competes with other formal and binding dispute resolution mechanisms such as litigation and arbitration. When registered in court there is assurance that the dispute remains solved instead of just relying on the goodwill of the parties. This allows the parties to have certainty in the outcome of the process. Profoundly the mediation process has opened new areas of practice for the justice system as mediation allows private practitioners to be able to comfortably undertake mediation in the comfort of their workplaces.
Keeping these various descriptions of mediation in mind shows that a good mediator can mediate any type of case as it may arise. What is important is familiarity with the process of mediation itself as opposed to familiarity with the subject matter of mediation. Familiarity with the process is how to earn your keep while familiarity with the subject matter of mediation is how you earn confidence.
As much as I have outlined the positive side of mediation as an alternative dispute resolution method several glitches have made the uptake lag in some areas. Firstly there is inadequate information about mediation to the public. This has had a negative impact as parties in dispute do not understand the benefit, mostly when their advocates also fall short of the same. In the future, it would be appropriate for citizens, relevant government officials, and agencies to be educated about ADR. Others to be included are the police, court users committees, judges and magistrates, probation officers, children officers, chamber of commerce members, and peace committees among others. Parties in dispute should in future be allowed to select their mediator as opposed to the current situation whereby mediators are assigned matters through the Court Annexed Mediation Committee.
From Larry Susskind's blog on the Consensus Building Approach At MIT, we are training Science Impact Coordinators (SICs) willing to put themselves in the middle between experts, advocates and regulators....
By Larry SusskindMost service businesses may not think that their efforts can move the needle in addressing the severe climate issues we are experiencing. At JAMS, we set up a “Green Team”...
By Chris PooleIntroduction The overnight success of ChatGPT and GPT-4, PaLM 2 (Bison-001), Claude v1, etc. marks an obvious turning point for artificial intelligence. It also marks an inflection point for public...
By Robert Bergman
