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Mediation

MEDIATION IS THE NEXT FRONTIER OF DISPUTE RESOLUTION

Human interactions invariably lead to conflicts and disputes. Studies have attributed the rushed decision to seek court redress to the perception that since litigation is adversarial and backed by the full force of the law with penal sanctions in the event of default, it is the most efficient mode of dispute resolution. This is oblivious of the fact that litigation is costly, commandeering, time-consuming and the backlog of cases causes litigants to be in perpetual anxiety as their cases hang indeterminately over their heads.

The promulgation of the Constitution of Kenya, 2010, ushered in an epoch of solid alternative dispute resolution. Alternative dispute resolution mechanisms now enjoy constitutional supremacy that has for a long time been the sole preserve of litigation. There are different modes of alternative dispute resolution, including Mediation and Arbitration. However, some commentators have shunned arbitration and likened an arbitrator to a private judge carrying the afflicts of the pound-wielding judicial officer. Nonetheless, this article vouches for mediation and identifies it for its exceptional user-friendliness, efficiency and effectiveness.

Mediation is the consummate Do It Yourself form of dispute resolution. Parties in mediation proceedings choose their preferred mediator and consequently come up with their own solutions. The mediator is merely a neutral umpire guiding the disputing parties from a point of disagreement to a point of agreement in a strictly confidential meeting of the parties. Often, parties that come to the mediation room with their fists clenched and sleeves rolled, leave the mediation room holding hands. This is unlike arbitration and litigation, which strains relations between the parties.

Quite noteworthy, the discussions that take place in mediation meetings are held in confidence and only the final agreement signed between the parties is shared with the relevant 3rd party e.g. the court.

Since the parties are the ones controlling the proceedings, they can comfortably identify their preferred venue, date and timelines within which they prefer to canvass their dispute. This subconsciously accords the parties a sense of a preliminary meeting of the minds.

Some people have called mediation a “Win-Win Situation” where the disputing parties tailor-make their unique solution(s) to their unique problem(s) without a lording party who reminds them of the cardinal laws of evidence or rules of procedure, as is the case in litigation and arbitration. So potentially efficient and effective is mediation that the courts have taken cognizance of this and incorporated Order 46 Rule 20 (3) of the Civil Procedure Rules, 2010 which provides that courts may refer certain cases to mediation.

However, mediation can only be used to canvass disputes that are not of a criminal nature and do not have technical aspects of the law. Be it as it may, mediation is a very effective tool in resolving disputes in the workplace, family disputes, disputes between parties acting under a commercial contract as well as disputes in the community.
At Gikera and Vadgama Advocates, we have certified professional mediators willing, able and ready to guide you in coming up with your own solutions for whatever disputes that you may have with your family members, customers, suppliers, work colleagues, or with your neighbours in the community or estate you come from.

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MEDIATION IS THE NEXT FRONTIER OF DISPUTE RESOLUTION

Mediation sets the stage for the conflicting parties to vent for as long as it takes to spell out their problems with each other until they find a mutually beneficial solution. The process would however not culminate into an agreement unless the essential mediation process is applied. This involves the conflicting parties converging into one room and descending into dialogue about the problem while facing each other, without interruption and for long enough until a solution is found.

In conflict, we either, like clams, we close all communications about the problem and refuse to speak or unduly influence the other party into accepting our side. Which is why before Mediation kicks off, the parties must deliberately accept the 2 cardinal rules; not to distance themselves from the dialogue by refusing to communicate and walking away and not to coerce one another into acceptance.

We have watched conflicting parties having submitted to mediation, vehemently defend their positions at the beginning and naturally at the peak of the aggression stumble upon a breakthrough that it is possible to stop the war and actually have a win-win outcome. The desire for peace sets in and each party begins to articulate their needs in conjunction with each other.

It is paramount to remember that, mediators do not offer any terms of agreement, ours is to remind the parties that they must remain in the essential mediation process by observing the cardinal rules, identify any gestures of reconciliation from the parties and nudge them towards the breakthrough and ultimately a mutually beneficial solution so that they can begin to heal out of their own efforts.

Article by:
Emma Ochieng
Partner,Head-Mombasa Office & Debt Collection
eochieng@gvalawfirm.com

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What is mediation?

Mediation law refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator.

What is the difference between Mediation & Arbitration?

In an arbitration, the arbitrator looks into the legal rights and wrongs of a dispute and makes a decision which is binding on parties whether they agree with it or not. There is usually a winning and a losing party in an arbitration.

In a mediation, the mediator, helps parties to settle their disputes by a process of discussion and narrowing differences. The mediator helps the parties to arrive at an agreed solution. He does not decide the dispute. A successful mediation results in an agreement signed by the parties. There is no such thing as a winning or losing party, because there is no binding decision without both parties agreeing to one.


What are the Advantages & Disadvantages of mediation?

Advantages:

The solution to the dispute is tailor made to suit the parties i.e. it is a win-win solution.
In mediation, as opposed to court verdicts or Arbitration awards which are given by third parties, the solutions to mediation are those which the mediator spurs the parties to come up with. The mediator does not make the solution, he is a catalyst of sorts, to spur them towards whatever solution is convenient to both parties. In court and in Arbitration, there is always a loser and a winner – and the winner usually takes it all.

Advantage number ii) is a corollary of advantage number i) – mediation preserves relationships. Since the solution to a dispute has to come from the parties in conflict, the solution has to accommodate both of them. Everyone therefore leaves the negotiation table satisfied and does not burn the bridge to the other person since his concerns were accommodated in the solution. Court verdicts and Arbitration awards usually leave no love lost between the disputants because someone has to lose and another wins.

Mediation is cost effective – A mediation session can last for only a few hours and be completed with a workable solution. An Arbitration or a court case usually takes years to end. The quick resolution of the teachers strike when the case was referred to mediation by the Court of Appeal is a point in case.

Mediation is “democratic’ – Anyone, even a lay person (think of your village elder) can be trained to be a mediator in a matter of days. An arbitrator usually takes multiple courses and is almost invariably a professional. The qualification of a Judge is even more exacting – a through mastery of the law and years of experience is required. Therefore, mediation can be done at any station of life for even the most mundane of disputes e.g. Landlord and tenant disputes, boundary disputes with relatives and neighbours, partnership/ directors disputes, employee- employee work place disputes etc.

Disadvantages:

Mediation can easily end in gridlocks – if the mediator is not skilled enough or if the disputants are completely opposed to each other’s position. Since the solutions to mediation must come from the parties, parties who hold non-negotiable positions cannot be mediated because they won’t compromise so as to achieve a win-win solution. The best example of this is the constant failure of mediation talks by repeat Presidents of the United States on the Palestinian and Israeli dispute over Jerusalem. Both sides refuse to compromise on sharing the City of Jerusalem no matter which president mediates the talks.

Not all disputes can be resolved by mediation especially where a legal position needs to be determined. Is a child born in the Kenyan airspace but in a French airline a Kenyan citizen? This is not a question that can be referred to mediation; only a court of law can pronounce on the legal status of such a child. The disputes best suited for mediation are those that involved a dispute over facts which can be settled by compromises as opposed to determination of legal positions. Can a victim of rape and the offender be referred to mediation? Can the dispute be settled by the exchange of a few camels or should the perpetrator see the inside of a jail cell? Mediation has its limits.

The execution of mediation settlements depends on the good will of the parties. Court verdicts and Arbitration awards are legally enforceable through the coercive power of the state e.g. attachment and sale of the property of the recalcitrant party. Mediation settlements depend on the parties’ sensibilities in sticking to their settlement terms; and people are not always sensible. To counter this menace, the court mandated mediation system makes provision for filing the mediation settlement in court and thereby adopting it as an order of the court hence enforceable through the coercive power of the state.

Is a mediation agreement legally binding?

A mediation settlement is binding as any other contract. To enforce the contract however, one has to sue in court under the normal process of law. That said, mediation settlements under the Kenyan Courts mediation project are enforceable as orders of the court without the need for the prolonged trial process that a party trying to enforce a contract has to go through.

How does the process of mediation work?

The process of mediation depends on the type of mediation being undertaken and the mediation technique of the mediator. Types of mediation include family mediations, work place mediation, community mediation (where various communities are at logger heads) etc. A mediator can choose to hear the parties in a joint session first then break into private session with each of them to allow them to fully open up on their grievances. He may then present the solution of each of the parties to their counterpart where the other party does not feel vulnerable if he accepts a compromise or the weakness of his case in private. Finally, the mediator can call a joint session to adopt a compromise and have the parties sign the mediation settlement/agreement.

What is the cost of Mediation?

There is a remuneration scale that mediators from various institutes use. It may be well to ask the mediator what scale he uses. The parties could also craft their own scale to suit their circumstances and the nature of the dispute. A dispute over a land boundary between relatives will not cost the same as a mediation between two multinational corporations over a license to a product worth a billion. All said, generally, mediators charge for their services by the hour. This is the first thing that a mediator discusses with the parties to avoid turning one dispute into a yet bigger one over the expenses of the mediator. Parties are advised to ask about the cost of the mediation at the earliest opportunity.

Article by:
David Kalii
Associate
dkalii@gvalawfirm.com

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Tonny Moses GVA Associate
Mr. Tonny M. Odera

Head – Dispute Resolution and Litigation & Mediation
todera@gvalawfirm.com

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