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.
Articles by our Advocates
- MEDIATION BRIEF By Mr. David Kalii
- NEXT FRONTIER By Ms. Emma Ochieng