Will win-win win? Opening Pandora’s box of f MRI vis-a-vis mediation dispute resolution in Kenya

In Issue No. 83 | Dec 2022, Medical Law
December 30, 2022
Functional magnetic resonance imaging (f MRI) measures the small changes in blood flow that occur with brain activity. It takes pictures of a person’s brain while the person is engaged in a task, a kind of watching the brain think. It threatens thus the autonomy of the disputants in the mediation process and the neutrality of the mediator as it can give fine details like one’s thoughts, intentions, the training one has undergone, the places one has visited, and such other details that are otherwise too personal. This shakes the confidentiality foundation of mediation. However, f MRI promises to have the keys to truth hence certainty in conflict resolution because in its findings, when a person is telling a lie, the brain areas linked with effort or conflict are activated and they can actually be identified in an individual brain; whereas, when one is telling the truth, few areas can be activated as one relies on just memory without conflicts or calculations as such. This paper will therefore examine the concept of confidentiality in mediation, the legal framework of mediation in relation to the parties’ autonomy and the mediator’s neutrality, how fMRI works, evaluate f MRI as a threat and remedy to mediation, make recommendations and a conclusion.

Mediation is one of the dispute resolution mechanisms in the scope of Alternative Dispute Resolution mentioned under article 159 (2)(c) of the constitution of Kenya 2010. “Mediation simply refers to the process of resolving conflict in which a neutral third party (mediator), assists the disputants to resolve their own conflict. The process is voluntary and the mediator does not participate in the outcome of the mediation process (agreement).”1 Section 2 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022 defines mediation as the informal and non- adversarial process conducted physically or virtually where a mediator encourages and facilitates the resolution of a dispute between two or more parties but does not include any attempt by a judge or magistrate to settle a dispute within the course of judicial proceedings.2 So it is a private settlement whereby the agreement is reached out of a mediation process conducted by a qualified mediator in respect to a dispute that is not the subject of a pending court case.3

Mediation is cheap and saves the disputants emotional stress4 as they table their issues willingly and come to an agreement themselves in the presence of a mediator. It therefore reduces the legal costs, sustains the rapport between disputants, saves time as it is fast, and makes the disputants be in charge of the decision-making process.5 By being fast, mediation acknowledges inherently that judicial time is an expensive resource6 and that no person ought to squander it.7 Since it focusses on the establishment or restoration of the relationship between the disputants, mediation is often called a win-win8 approach to a dispute.

Mediation was vivid for example in the Rwandese Gacaca (grassroots) justice system where people came together after the 1994 genocide and reconciled through the mediation
of the Abunzi (mediators).9 Even in Kenya, mediation plays a vital role in many disputes. According to the 2017 survey by the Judiciary, together with the Hague Institute for Innovation of Law, only 10% of Kenyans use the formal justice system to resolve their disputes.10 Additionally:

The Justice Needs Survey established that two out of three Kenyans (68%) have encountered at least one dispute during the last four years. Of these, 81% sought resolution of their dispute. Models of dispute resolution range from non-institutional methods (personally resolved, customs and traditions, religious institutions) to institutional neutral third parties (police, chiefs, mediation). Out of the 81% of Kenyans who sought resolution, only 21% sought resolution in the courts. The remaining 68% sought to resolve their dispute through ‘non-judiciary-based’ forms of dispute resolution.11

After the Post-Election Violence of 2007, mediation played a huge role in uniting Kenyans. Kofi Annan for example came as a mediator and indeed after his mediation, the tension that had heightened and threatened peace lowered.12 The Kipkelion AJS project in Kericho was initiated in 2008 following the 2007/2008 post-election violence.13 Maslah is the AJS mechanism used in Garissa.14 Moreover, “Among the Burji, disputes involving members of the same manyatta are heard and determined within the manyatta.15” Mediation is thus key to harmony.

In the 2022 CIARB 1st Mediation conference, Lawrence Ngugi while speaking about developing a sustainable mediation marketplace through standardization of rules and practices, observed that mediation currently sits in the eyes of the beholder.16 Judge George Odunga added that the process of mediation cannot be oversimplified in a document as each dispute is unique and demands a fresh view.17 Nonetheless, the essential roles of the mediator include building, maintaining and improving communication between the disputants; facilitating information to and between the disputants; befriending the disputants in the mediation process to foster trust and confidence; and encouraging active mediation whereby the disputants are willing to engage in cooperation negotiation.18

Confidentiality is therefore crucial in mediation. However, modern technology vide fMRI threatens the autonomy of the disputants and the neutrality of the mediator as it can give fine details like one’s thoughts, intentions, the training one has undergone, the places one has visited,19 and such other details that are otherwise too personal. So, fMRI simply takes pictures of a person’s brain while the person is engaged in a task, a kind of watching the brain think.20
In itself, fMRI is an abbreviation of functional magnetic resonance imaging. “Functional magnetic resonance imaging (f MRI) measures the small changes in blood flow that occur with brain activity.”21 It is because of this ability to measure changes in the blood flow in the brain that it can tell one’s intentions, places visited, training undergone, and the like. This paper will examine the legal framework of mediation in relation to the parties’ autonomy and the mediator’s neutrality, how f MRI works, evaluate f MRI as threat and remedy to mediation, make recommendations then conclusion.

II. The legal framework of mediation in relation to the parties’ autonomy and the mediator’s neutrality

The Civil Procedure (Court-Annexed Mediation) Rules, 2022 under rule 25 talks of confidentiality when it states that any person taking part in a mediation process under the rules shall be required by the mediator to execute a confidentiality agreement and shall be bound by the terms of such agreement.22 Sub-rule 3 adds that any communication during mediation including the mediator’s notes shall be confidential and not admissible in evidence in any ongoing or subsequent legal proceedings.23 Furthermore, sub-rule 4 says that any person taking part in a mediation process shall maintain the confidentiality of any information obtained during the mediation and not disclose it unless that person is required by law to disclose the information; or the information relates to child abuse, child neglect, defilement, domestic violence, a sexual offence or any related criminal or illegal purpose.24 This is echoed in rule 15 of the Mediation Rules, 2016 which stresses that:

(1) The parties and participants in a mediation shall keep all matters relating to or arising out of the mediation private and confidential unless—

(a) the disclosure is compelled by law;

(b) the disclosure is necessary to give effect to a mediation agreement or to enforce an agreement reached to settle or resolve the whole or any part of the dispute;

(c) there is a written consent of the parties to the mediation.

(2) The parties and participants in mediation shall sign a confidentiality undertaking in the form set out in the Third Schedule.

(3) Any information submitted to the Mediator by a party in caucus or private session shall be considered as confidential information between the party providing

the information and the Mediator unless the party providing the information consents to its disclosure to any other party to the mediation.25

The Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (6) adds that subject to sub-rule (4), the mediator or any person present or appearing at a mediation session may not be summoned, compelled or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law.26 Still, sub-rule 7 states that no person present or appearing at a mediation session whether in person or through a virtual platform shall use any electronic device of any nature to record the mediation session.27 Sub-rule 8 cautions that any breach of this rule shall constitute contempt of court.28

Rule 26 (5) adds weight to confidentiality by stating that any person attending a mediation session under sub-rule 4 shall be bound by the rules of confidentiality set out in rule 25 and, at his or her first appearance, sign the confidentiality agreement.29 According to the Guidelines for Mediators and Mediation, a mediator should not reveal any information arising from the mediation process except with the consent of the parties or where required by law.30 The general rules for confidentiality include:

i. The mediator should at the outset discuss with the parties to the dispute their expectations regarding confidentiality.

ii. Confidentiality extends to the mediation proceeding, only those involved in the dispute and proceedings may attend.

iii. Researchers may with the permission of the parties, be granted access to individual case files; observe the proceedings; and interview the parties.

iv. A mediator should edit and remove all identifying information from mediation material passed on for purposes of research or training.31 Moreover, the Code of Conduct for Mediators 2021 in principle 5 echoes all the foregoing restrictions on confidentiality, but adds an exemption to reveal such information when necessary to defend the mediator from any proceedings or charges for which (s)he risks incurring any liability.32 In re Estate of BM (Deceased) [2019] eKLR, the respondent claimed that the mediator handwrote a basic template to be used as a framework for the preparation of a settlement that would be executed by the parties once all the terms were agreed upon. That was the template, according to the respondent, that the mediator filed in court. The respondent asserted that the filing was without the parties’ knowledge and consent. The executor opposed the application noting that the mediation had succeeded and had resulted into a settlement on December 14, 2017 which the mediator had lodged in court. The court held that:

It is clear that the final deed of settlement had not been agreed upon. The parties hoped to agree before February 28, 2018. On this, the parties agreed and appended their signatures. But, the attached template (both handwritten and typed) was not signed by the parties. It could not have been signed because the deed of settlement was yet to be adopted. It was to be adopted later (to be ready for lodging

in court before February 28, 2018). In conclusion, I find that the documents dated February 14, 2018 and December 14, 2017 did not amount to a mediation settlement agreement.33

This means that confidentiality is key in mediation as it fosters trust among the parties. Lack of confidentiality therefore amounts to suspiciousness and this ruins the conducive environment of mediation often enjoyed when confidentiality is abundant. By showing one’s intentions, thoughts, training, places visited, among such other details, f MRI throws a sword against confidentiality as the members will be suspicious about each other as they sit to dialogue, knowing that the other party or the mediator knows his/her intentions, thoughts, and such other personal details.

III. f MRI as threat and remedy to mediation

(a) How f MRI works

Although widely used to probe brain function, the mechanisms underlying the information produced are not fully understood by many. Among the systems employed in magnetic resonance imaging, there is a 5-10 ton superconductive magnet which is made to provide a powerful magnetic field with high homogeneity inside the bore where the object to be imaged is placed.35

To understand why it is possible for the fMRI to produce its images, it is important to understand some of the body properties that make such possible. Strictly, “Certain nuclei, including the hydrogen nuclei in water and lipids which compose a large proportion of most biological samples, display magnetic properties- they have a magnetic moment (due to the spin) which acts similarly to a bar magnet or compass needle exposed to the earth’s magnetic field.”36

As such, the magnetic field of the MRI system establishes a situation in which the magnetic moment of a small percentage of these hydrogen nuclei align with the main magnetic vector.37 For example:

…if a person is lying inside the magnet, each point within their body [which will be represented in the final image as a particular ‘pixel’ (picture element) or ‘voxel’ (volume element)] will have a certain number of protons (proportional to the water content of the tissue) aligned with the main magnetic field.38

The alignment of the spins in turn yields a bulk magnetization. This magnetization “precesses (the circular motion that the axis of a gyroscope- or a child’s spinning top- displays as it spins under the influence of gravity) around the direction of the magnetic field.”39 The particular MR method mostly used to probe information associated with the brain is the blood oxygenation level dependent (BOLD) contrast imaging.40 The underlying principle of this method is the MR images made sensitive to changes in the state of oxygenation of the hemoglobin.41 Depending on the oxygen concentration, a hemoglobin molecule will display different magnetic properties.42 For example, when replete with oxygen (oxyhemoglobin) it behaves as a diamagnetic substance, but when oxygen atoms are depleted (deoxyhemoglobin), it becomes paramagnetic.43 Consequently:

Within any particular imaging voxel (representing a small part of the brain) the proportion of deoxyhemoglobin relative to oxyhemoglobin dictates how the MR signal will behave in a BOLD image: areas with high concentration of oxyhemoglobin give a higher signal (a brighter image) than areas with low concentration.44

The variation of the levels of oxygen is affected by the activeness of that part at that moment. As a corollary, there is a local variation of the blood supply in accordance with local variations of the functional activity.45 However, the details of neurovascular coupling involved are still largely unknown, regardless of the fact that it is employed in most neuroimaging modalities, including f MRI, basing on hemodynamic responses to neuronal activity.46 Nonetheless, “The basic concept of fMRI is to have the person inside the scanner performing a series of cognitive tasks (the paradigm, which contains epochs or events) whilst BOLD images representing the brain are collected.”47 These images are then analysed and inferences are made. fMRI is not perfect. It comes with challenges on the data analysis and its level of accuracy. Spatial and temporal limitations are the key challenges that face this method. For instance:

The temporal resolution determines our ability to separate brain events in time, while the spatial resolution determines our ability to distinguish changes in an image across spatial locations. The manner in which fMRI data is collected makes it impossible to simultaneously increase both, as increases in temporal resolution limit the number of k-space measurements that can be made in the allocated sampling window and thereby directly influence the spatial resolution of the image.48

This means that it is hard to establish what brain activity was happening at a particular time in a particular part of the brain. As such, this makes the findings questionable with regards to the spatial and temporal resolution of the images obtained. Furthermore, “the neurophysiological mechanisms behind the BOLD/f MRI signal are only partly understood.”49 This obviously makes it hard to generalize the results or even to use it on an individual level for diagnostic purposes.

(b) How f MRI is a threat to the parties’ autonomy and the mediator’s neutrality

The first concern sparks from the autonomy of the disputants in mediation. Everyone wonders, “The thoughts and memories inside our heads have always been seen as private; are we ready to relinquish them and allow them to be used as potent information in courts?”50 Of course, the right to privacy has been esteemed for example by the Supreme Court of the United States in the case of Kyllo v United States 533 US 27 (2001) where the use of thermal- imaging in the suspect’s home was disallowed by the court.51 fMRI is therefore, to some level, an infringement of privacy especially when used in lie detection without the consent of the subject.

Aside, the subject whose brain is being scanned for court proceedings can fail to comply with the instructions hence the results will be faulty.52 As a corollary, if say a mediator uses f MRI to investigate the disputing parties, there are high chances that they will be interested in the outcome hence this will easily affect their compliance with the instructions given during the scanning. Assuming the parties give accurate information because say the mediator investigates them unknowingly using fMRI, the mediator, although expected to be neutral, cannot be neutral because he/she will have known the ‘truth’ and will expect the parties to make a settlement consistent with this ‘truth’. While the mediator is supposed to allow the parties to come to a settlement themselves, here the mediator will be sort of omniscient on the state of affairs and will find it inevitable to manipulate the settlement basing on the information obtained through the f MRI.

Indeed, this is why even the courts admit the fact that neuroimaging for lie detection is not yet generally accepted by the scientific community.53 And even if f MRI becomes accepted in Kenya today, it will be an infringement of the Data Protection Act of 2019 because section 26 is categorical that a data subject has a right, inter alia, to be informed of the use to which personal data is to be put and to object to the processing of all or part of their personal data.54 Moreover, section 28 (3) on collection of personal data is emphatic that a data controller or data processor shall collect, store or use personal data for a purpose which is lawful, specific, and explicitly defined.55 Section 29 stresses that:

A data controller or data processor shall, before collecting personal data, in so far as practicable, inform the data subject of— (a) the rights of data subject specified under section 26; (b) the fact that personal data is being collected; (c) the purpose for which the personal data is being collected; (d) the third parties whose personal data has been or will be transferred to, including details of safeguards adopted; (e) the contacts of the data controller or data processor and on whether any other entity may receive the collected personal data; (f) a description of the technical and organizational security measures taken to ensure the integrity and confidentiality of the data; (g) the data being collected pursuant to any law and whether such collection is voluntary or mandatory; and (h) the consequences if any, where the data subject fails to provide all or any part of the requested data.56

Furthermore, the Evidence Act of 1989 [Rev 2014], in section 139 notes that no one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such other person consents to their production.57 The personal information accessible by fMRI is no doubt in this category of information that the subject needs first to consent before access is granted. The Constitution of Kenya 2010 as well in article 31 (c) says that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed.58 f MRI penetrates into the brain and takes data about the person’s thoughts, intentions, and such other personal information contrary to this provision.

The Civil Procedure (Court-Annexed Mediation) Rules 2022, rule 25 elaborates on confidentiality.59 f MRI creates suspiciousness among the disputants as a result of its ability to encroach into their personal information, contrary to their wishes. Even in America, rule 403 of the Federal Rules of Evidence provides for the exclusion of evidence on the basis of, inter alia, prejudice.60 In this case, the mediator who ought to be impartial will be partial because of the bias obtained through the f MRI lie detection of the disputants. This will ruin the conducive environment of mediation in the strict sense where the disputants and the mediator ought to be friends and not spies as is the case when f MRI comes in.

On the other hand, accuracy of data is not guaranteed in f MRI. This is because despite the distinction between truths and lies averred multiple subjects and trials, they nonetheless do not give the information whether the pattern of activation is common with other mental processes or experimental conditions.61 In fact, scientists today question whether even these experiments actually examine lies.62 A lie that has been often repeated or one that was told some years back is likely to look different from an unpracticed or recent lie.63 Again, the images taken are not actually photos of the brain, rather “they are statistically built representations of blood flow changes believed to be associated with brain activity.”64 Interestingly, it is not clear what the term ‘activity’ in this case exactly means. Also:

There is some evidence to suggest that fMRI scanning will detect the subject’s belief, even if that belief isn’t borne out by the objective truth. In a 2010 memory experiment supported by the Research Network and conducted by neuroscientist Jesse Rissman and colleagues, the brain activity observed when subjects recognised a face was comparable to that observed when subjects believed they had seen a face before but hadn’t.65

Obviously, this will mislead the mediator in attempting to probe the disputants. This is because of the errors it will result in due to this confusion of beliefs. Aside, fMRI makes it impossible to infer a specific mental process solely on the basis of brain activity.66 The reason for this is that, “A single brain region is often involved in a number of mental processes, and a mental process often involves multiple areas of the brain.”67 False conclusions will mostly be made and this can easily lead to a worsened relationship between the disputants instead of coming together. To this level, f MRI is dangerous in mediation because of this ambiguity created between real beliefs and imaginary ones and the inability to infer a specific mental process solely on the basis of brain activity in a particular region of the brain. Moreover:

A number of studies conform the idea that individuals tend to be persuaded by the seductive allure of neuroscience and that fMRI possess an “aura of certainty” in the eyes of jurors. These studies raise serious questions concerning jurors’ ability and competency to understand expert scientific testimony. When evidence is highly complex, jurors tend to become confused and base their evaluation of the evidence on heuristic cues- or cognitive shortcuts- that often presume an “implied certainty and authority of science.”68

Nonetheless, if f MRI is given platform in mediation here in Kenya, it will have ripple effects. First, the mediators, some of whom are not educated, will blindly admit fMRI claims from say the disputant parties or any accompanying expert in f MRI. A recent study depicted that “75% of participants reached a guilty verdict when presented with fMRI evidence, while 45% of participants reached a guilty verdict when presented with polygraph evidence.”69 As such, mediation will be left in the hands of the manipulation of science and barely in the authentic probing of the neutral mediator. Secondly, it will ruin the trust bestowed by the disputants upon the mediator, once they discover that they are under an f MRI scan for lie detection. Thirdly, it will make the disputants lose their autonomy and right to privacy70 as their thoughts, intentions, and such other personal information will be exposed without their consent.

(c) How f MRI is a remedy to the parties’ autonomy and the mediator’s neutrality

Recently, in the case of United States of America v Lorne Allan Semrau No. 11-5396 [2012], the United States Court of Appeals for the sixth circuit affirmed Dr Semrau’s convictions that results from a functional magnetic resonance imaging lie detection test should have been admitted to prove the veracity of his denials of wrongdoings.71 In this case, the court held that even the government did not seem to challenge the f MRI findings by Dr Semrau.72 The court further held that, “…the magistrate judge qualified his conclusion by specifying such error rates are unknown specifically for f MRI-based lie detection in the real world as opposed to the laboratory.”73 This is good news for f MRI because it shows that people are now appreciating the gist of f MRI’s findings and this is crucial even for mediation sessions where f MRI can be used to establish the underlying issues that either disputing party may shy off from stating.

Although mediation suggests the disputants to find solutions by themselves and for themselves; nonetheless, it is difficult at times to get into these solutions even after a lengthy probing. fMRI will be a noble analytic tool in mediation since the mediator will be able to identify the best interests of the disputants through evaluating their thoughts and intentions, even when they are not aware, thus making the findings more accurate. f MRI can as well help to steer forward the mediation sessions when the disputants are stuck in one issue. According to Thomas Narciso Daniels, the founder of the Daniels Mediation and Alternative Dispute Resolutions, active listening and questioning are key skills in mediation.74 He adds that the first thing to do in an impasse is to identify the impasse.75 fMRI’s prowess in monitoring the thoughts and intentions for example can easily unearth the impasse or still, help the mediator in his/ her active listing and questioning to be aware of the real thoughts and intentions of the disputants.

When a person is telling a lie, the brain areas linked with effort or conflict are activated and they can actually be identified in an individual brain; whereas, when one is telling the truth, few areas can be activated as one relies on just memory without conflicts as such.76This obviously means that a person struggles to lie, since calculations are involved in the brain to see say the aftermath of each lie. But since truth is simply the state of affairs, one just parrots it with ease, without calculations as such. Hence in telling the truth, few areas of the brain are activated as compared to when one is telling lies. This is a great breakthrough of f MRI and it is significant in lie detection because the mediator in this case can easily know which disputant is telling lies and who is truthful. For example:

Neuroscientist Andrew Kozel and colleagues analysed data from three independent ‘mock theft’ experiments in which subjects were instructed to look at two objects, select one, take it from a drawer, hide it in a locker containing the subject’s personal belonging , and then deny having taken either object. Accuracy rates for those mock theft experiments range from 71 to 90 percent.77

The only challenge with the mock theft experiments is especially the fact that when a subject has a vivid memory of one object than another, it is difficult to establish how much of what is being detected is deception and how much is memory.78 There is as well a concern on whether undetected physical or mental strategies could interfere with patterns of neuronal activities or say signal strength.79 Still, there is worry whether the brain activation is a result of deception or attention as observed in a 2008 experiment by neuroscientist Jonathan Hakun and colleagues where there was brain activation whenever the target or lie stimulus was presented, regardless of whether the involved subjects were lying about the stimulus at the time.80

Compared to traditional lie detection (polygraph) that usually measures an individual’s physiological reactions to direct questions, fMRI measures brain activity as what causes the skin response, heart rate, blood pressure, respiration changes, and the like, registered by the polygraph.81 In other words, polygraphs measure the secondary activities while fMRI goes for the fundamental causes of these secondary activities in lie detection. Consequently, “f MRI-based lie detection utilizes an objective and more reliable method for truth verification, as its results do not require subjective interpretation.”82 f MRI is therefore more objective than polygraphs.

Additionally, confounding influences like stress or anxiety cannot affect fMRI’s results because these mental states create their own unique pattern that can be easily distinguished from that created by a lie.83 Moreover, “When an fMRI acquires a signal after an individual answers a question, the subsequent brain process measurement can potentially differentiate between an answer’s veracity and its mendacity.”84 Veracity is the quality of truthfulness while mendacity is basically the act of not telling the truth85, put simply as lying. This is possible through identifying the areas of conflicts86 in the brain as earlier mentioned to draw a dichotomy between telling lies and telling the truth.

Nevertheless, f MRI can be a beacon of truth if the foregoing concerns are addressed hence it can foster mediation by availing the state of affairs on the disputes at hand as the mind of the disputants can be penetrated by the mediator who can then be a better midwife of harmony. It will make it possible for mediation to handle practically any case because the mediator will have powerful tools to delve into the intentions, thoughts, and such information with high accuracy. Due to fMRI, mediation’s time of dispute resolution will be small since the truth will be readily available thus lessening the probing time. The mediator will be a sort of a diviner who will surprise the disputants with accurate truths on what they are thinking or intending to do, or still, what they did in relation to the dispute and hint at the best solutions for the most desirable common good of the disputants.

IV. Recommendations

  • There is need for more research and innovation in
    the area of f MRI to establish more facts for example regarding the mechanisms underlying the information produced that are not yet fully understood.
  • There should be a special set of laws for mediators to employ f MRI especially in cases that are hard to rely on mere probing and listening. This new mechanism as well can be used to establish an impasse, or the most desirable issues, or underlying issues, or the best solutions for the common good of both parties, tapping directly from their thoughts and intentions.
  • Sensitization is necessary to all mediators on how fMRI can be used in mediation sessions. This will serve to erase any potential cultural bias against fMRI in its lie detection and precisely, its place in mediation to unearth the truth of the disputants in order to facilitate the mediator’s accuracy in the probing.
  • More sophisticated fMRI gadgets should be devised that say are not even identifiable by the disputants but by just a ray of light, they can tap into a person’s thoughts and intentions, thus facilitating the dispute resolution’s accuracy.
  • f MRI sophisticated gadgets and reports should be linked with a team of experts within the mediation sphere who can monitor everything and ensure that there is no manipulation of the data received through f MRI.
  • Mediators should receive expert training on how to use f MRI sophisticated gadgets in lie detection as a way of facilitating their accuracy in probing thus saving time that would have been wasted in ambiguous probing with the hope to land on certainty.

V. Conclusion

Whereas mediation intends the mediator to be an active listener and a wise inquirer, it is evident that fMRI can accurately supplement these mediation tools as it taps into the thoughts and intentions of the disputants and this can help the mediator ask the right questions, or hint at the right issues or solutions in the process of mediation. However, there is a need to look into the laws regarding privacy and how f MRI can be accommodated among the exceptional modes permitted by law to use f MRI during probing. There is also a need to investigate the mechanisms of the working of f MRI so as to be sure that it is sufficient in lie detection
in relation to its working mechanisms. Since f MRI is a new mechanism, there is need to enlighten the mediators and general public on how it works so as to minimize bias and prejudice regarding its methodology and findings. Therefore, fMRI can be a great complement to mediation as a win-win stride to harmony.

The author holds a Degree in Philosophy from the Pontifical University of Urbaniana, Rome. He is currently winding up his master’s in philosophy at the Catholic University of Eastern Africa. He is also a law student at the University of Nairobi, Parklands. He has published two novels: Peeling the Cobwebs (2020) and Her Question Pills (2020). Currently, he is an intern at Kenya Law.

VI. References Articles

Cambridge Dictionary [2022] Available online: https:// dictionary.cambridge.org/dictionary/english/mendacity [November 2, 2022].

Functional MRI (fMRI), Radiological Society of North America [2022]. Online article Available at: https://www. radiologyinfo.org/en/info/fmribrain?google=amp [October 31, 2022].

George Amoh, ‘Mediation -The Preferred Alternative for Conflict Resolution’ [2007]. Online article Available on: https://www.gdrc.org/u-gov/conflict-amoh.html (October 31, 2022).

Kofi Annan Foundation, ‘Back from the Brink: the 2008 mediation process and reforms in Kenya’ [2008]. Online article: https://www.kofiannanfoundation.org/mediation- and-crisis-resolution/back-from-the-brink-2008-mediation- process-and-reforms-in-kenya/ [October 31, 2022].

Tarlow, ‘Mediation of Construction Disputes’ [2008]. Online article Available at: The Impact of Mediation in Construction. Accessible at: https://www. adrodrintenational.com/the-impact-of-mediation-in- construction [October 23, 2021].

www.ramco-ins.com Accessed on October 23, 2021.

Journals

Anthony Wagner, Richard Bonnie, Casey, et al, ‘f MRI and Lie Detection’ Columbia Law School [2016] https:// scholarship.law.columbia.edu/faculty-scholarship/2015 [November 1, 2022].

David McCabe, Alan Castel and Mathew Rhodes, ‘The Influence of fMRI Lie Detection Evidence on Juror Decision-Making’ John Wiley & Sons Ltd [2011].

Edson Amaro Jr and Gareth J Barker, ‘Study Design in
f MRI: Basic Principles’ [2006] Brain and Cognition Journal.

Erica Beecher-Monas & Edgar Garcia-Rill, ‘Overselling Images: f MRI and the Search for Truth’ UIC Law Review Vol. 48, Issue 3, [2015].

Karsten Specht, ‘Current Challenges in Translational and Clinical f MRI and Future Directions’ Frontiers in Psychiatry, Vol. 10, January 2020.

Leo Kittany, ‘Admissibility of f MRI in Lie Detection: The Cultural Bias Against Mind Reading Devices’ Brooklyn Law Review [2007], Available at: https://brooklynworks. brooklaw.edu/blr/vol72/iss4/5 [November 1, 2022].

Libby Rozbruch, ‘Should Brain Scan Lie Detection be used as Evidence in Court?’ Penn Undergraduate Law Journal

[February 17, 2018], https://www.pulj.org/the-round- table-should-brain-scan-lie-detection-be-used-as-evidence- in-court [November 1, 2022].

Martin A Lindquist, ‘The Statistical Analysis of f MRI Data’ Vol. 23, 2008, No. 4, pp. 439-464.

Zachary E. Shapiro, ‘Problems with fMRI as a tool of lie detection’ Harvard Law Journal [February 19, 2015], https://blog.petrief/om.law.harvard.edu/2015/02/19/ problems-with-fmri-as-a-tool-of-lie-detection/ [November 1, 2022].

Conference Proceedings

Caroline Kendagor, ‘Mediation Practice in Africa: The Fusion of Modern Dispute Resolution and Traditional African Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 1, October 28, 2022.

George Odunga, ‘Developing a Sustainable Mediation Marketplace through Standardization of Rules and Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 4, October 28, 2022.

Kariuki Muigua, ‘Mediation Practice in Africa: The Fusion of Modern Dispute Resolution and Traditional African Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 1, October 28, 2022.

Lawrence Ngugi, ‘Developing a Sustainable Mediation Marketplace through Standardization of Rules and Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 4, October 28, 2022.

Thomas Narciso Daniels, ‘Mediator Tools and Skills, Peer to Peer Discussion on Lessons learnt, and strategic positioning for successful Mediation, Peace Building and Conflict Resolution’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 5, October 28, 2022.

Policies

Alternative Justice Systems Framework Policy, Traditional,

Informal and other Mechanisms used to access Justice in Kenya (Alternative Justice Systems) [2020].

Ministry of Interior and Coordination of National Government, ‘Guidelines for Mediators and Mediation’.

Steve Ouma Akoth, Clara Otieno-Omondi, Florence Macharia et al, ‘Alternative Justice Systems Baseline Policy’ Traditional, Informal and other Mechanisms used to access Justice in Kenya (Alternative Justice Systems) [2020].

Video

60 Minutes Rewind: 2009 Report, Mind Reading [2019], YouTube: https://youtu.be/Qwk2pqf YQFc [October 31, 2022].

Kenyan Case laws

In re Estate of BM (Deceased) [2019] eKLR.

Muchanga Investiments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 [2009] eKLR 229.

R v Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] eKLR 728.

International Case laws

Kyllo v United States 533 US 27 (2001)

United States of America v Lorne Allan Semrau No. 11-5396 [2012].

International Instruments of law

Federal Rules of Evidence, 2011.

National Instruments of Law

Civil Procedure (Court-Annexed Mediation) Rules, 2022. Code of Conduct for Mediators, 2021.

Constitution of Kenya, 2010.

Data Protection Act, 2019.

Evidence Act, 1989. Mediation Rules, 2016.

1George Amoh, ‘Mediation -The Preferred Alternative for Conflict Resolution’ [2007]. Online article Available on: https://www.gdrc.org/u-gov/conflict-amoh.html (October 31, 2022).

2Civil Procedure (Court-Annexed Mediation) Rules, 2022, section 2.

3Civil Procedure (Court-Annexed Mediation) Rules, 2022, ibid.

4The Impact of Mediation in Construction Accessible at: https://www.adrodrintenational.com/the-impact-of-mediation-in-construction Accessed on October 23, 2021.

5Tarlow, ‘Mediation of Construction Disputes’ [2008]. Online article Available at: www.ramco-ins.com Accessed on October 23, 2021.

6R v Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] eKLR 728.

7Muchanga Investiments Limited v Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 [2009] eKLR 229.

8Kariuki Muigua, ‘Mediation Practice in Africa: The Fusion of Modern Dispute Resolution and Traditional African Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 1, October 28, 2022.

9Caroline Kendagor, ‘Mediation Practice in Africa: The Fusion of Modern Dispute Resolution and Traditional African Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 1, October 28, 2022.

10Alternative Justice Systems Framework Policy, Traditional, Informal and other Mechanisms used to access Justice in Kenya (Alternative Justice Systems) [2020], p. 3.

11Steve Ouma Akoth, Clara Otieno-Omondi, Florence Macharia et al, ‘Alternative Justice Systems Baseline Policy’ Traditional, Informal and other Mechanisms used to access Justice in Kenya (Alternative Justice Systems) [2020], 11.

12Kofi Annan Foundation, ‘Back from the Brink: the 2008 mediation process and reforms in Kenya’ [2008]. Online article: https://www.kofiannanfoundation.org/ mediation-and-crisis-resolution/back-from-the-brink-2008-mediation-process-and-reforms-in-kenya/ [October 31, 2022].

13Steve Ouma Akoth, Clara Otieno-Omondi, Florence Macharia et al, op cit., 12.

14Steve Ouma Akoth, Clara Otieno-Omondi, Florence Macharia et al, 14.

15Steve Ouma Akoth, Clara Otieno-Omondi, Florence Macharia et al, ibid.

16Lawrence Ngugi, ‘Developing a Sustainable Mediation Marketplace through Standardization of Rules and Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 4, October 28, 2022.

17George Odunga, ‘Developing a Sustainable Mediation Marketplace through Standardization of Rules and Practices’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 4, October 28, 2022.

18George Amoh, op. cit.

1960 Minutes Rewind: 2009 Report, Mind Reading [2019], YouTube: https://youtu.be/Qwk2pqf YQFc [October 31, 2022].

20Leo Kittany, ‘Admissibility of fMRI in Lie Detection: The Cultural Bias Against Mind Reading Devices’ Brooklyn Law Review [2007], p. 1351. Available at: https:// brooklynworks.brooklaw.edu/blr/vol72/iss4/5 [November 1, 2022].

21Functional MRI (fMRI), Radiological Society of North America [2022]. Online article Available at: https://www.radiologyinfo.org/en/info/fmribrain?google=amp [October 31, 2022].

22Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25.

23Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (3).

24Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (4).

25Mediation Rules, 2016, rule 15 (1)(2)(3).

26Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (6).

27Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (7).

28Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 25 (8).

29Civil Procedure (Court-Annexed Mediation) Rules, 2022, rule 26 (5).

30Ministry of Interior and Coordination of National Government, ‘Guidelines for Mediators and Mediation’, p. 15.

31Ministry of Interior and Coordination of National Government, ‘Guidelines for Mediators and Mediation’, pp. 15-16.

32Code of Conduct for Mediators, 2021, principle 5.

33In re Estate of BM (Deceased) [2019] eKLR.

34Edson Amaro Jr and Gareth J Barker, ‘Study Design in f MRI: Basic Principles’ [2006] Brain and Cognition Journal, 1. 35Edson Amaro Jr and Gareth J Barker, 2.

36Edson Amaro Jr and Gareth J Barker, ibid. 37Edson Amaro Jr and Gareth J Barker, ibid. 38Edson Amaro Jr and Gareth J Barker, ibid.

39Edson Amaro Jr and Gareth J Barker, ibid.

40Edson Amaro Jr and Gareth J Barker, ibid.

41Edson Amaro Jr and Gareth J Barker, ibid.

42Edson Amaro Jr and Gareth J Barker, ibid.

43Edson Amaro Jr and Gareth J Barker, ibid.

44Edson Amaro Jr and Gareth J Barker, ibid.

45Edson Amaro Jr and Gareth J Barker, ibid.

46Edson Amaro Jr and Gareth J Barker, ibid.

47Edson Amaro Jr and Gareth J Barker, 3.

48Martin A Lindquist, ‘The Statistical Analysis of f MRI Data’ Vol. 23, 2008, No. 4, pp. 439-464.

49Karsten Specht, ‘Current Challenges in Translational and Clinical fMRI and Future Directions’ Frontiers in Psychiatry, Vol. 10, January 2020, p. 2.

50Libby Rozbruch, ‘Should Brain Scan Lie Detection be used as Evidence in Court?’ Penn Undergraduate Law Journal [February 17, 2018], https://www.pulj.org/the- round-table-should-brain-scan-lie-detection-be-used-as-evidence-in-court [November 1, 2022].

51Kyllo v United States 533 US 27 (2001)

52Zachary E. Shapiro, ‘Problems with fMRI as a tool of lie detection’ Harvard Law Journal [February 19, 2015], https://blog.petrief/om.law.harvard.edu/2015/02/19/ problems-with-fmri-as-a-tool-of-lie-detection/ [November 1, 2022].

5360 Minutes Rewind: 2009 Report, Mind Reading, op. cit.

54Data Protection Act, 2019, section 26.

55Data Protection Act, 2019, section 28 (3).

56Data Protection Act, 2019, section 29.

57Evidence Act, 1989, section 139.

58Constitution of Kenya, 2010, article 31.

59Civil Procedure (Court-Annexed Mediation) Rules 2022, rule 25.

60Federal Rules of Evidence, rule 403.

61Libby Rozbruch, op cit.

62Anthony Wagner, Richard Bonnie, Casey, et al, ‘f MRI and Lie Detection’ Columbia Law School [2016] https://scholarship.law.columbia.edu/faculty-scholarship/2015 [November 1, 2022].

63Anthony Wagner, Richard Bonnie, Casey, et al, ibid.

64Erica Beecher-Monas & Edgar Garcia-Rill, ‘Overselling Images: f MRI and the Search for Truth’ UIC Law Review Vol. 48, Issue 3, [2015], p. 653.

65Anthony Wagner, Richard Bonnie, Casey, et al, p. 2.

66Anthony Wagner, Richard Bonnie, Casey, et al, ibid.

67Anthony Wagner, Richard Bonnie, Casey, et al, ibid.

68Libby Rozbruch, op cit.

69Libby Rozbruch, ibid.

70Libby Rozbruch, ibid.

71United States of America v Lorne Allan Semrau No. 11-5396 [2012].

72United States of America v Lorne Allan Semrau No. 11-5396 [2012].

73United States of America v Lorne Allan Semrau No. 11-5396 [2012].

74Thomas Narciso Daniels, ‘Mediator Tools and Skills, Peer to Peer Discussion on Lessons learnt, and strategic positioning for successful Mediation, Peace Building and Conflict Resolution’ CIARB 1ST Mediation Conference at Radisson Blu Hotel Nairobi: The Coming of Age for Mediation, Encounter from Africa, Session 5, October 28, 2022. 75Thomas Narciso Daniels, ibid.

76David McCabe, Alan Castel and Mathew Rhodes, ‘The Influence of fMRI Lie Detection Evidence on Juror Decision-Making’ John Wiley & Sons Ltd [2011], p. 566. 77Anthony Wagner, Richard Bonnie, Casey, et al, op cit., p.2.

78Anthony Wagner, Richard Bonnie, Casey, et al, ibid.

79Anthony Wagner, Richard Bonnie, Casey, et al, p. 3.

80Anthony Wagner, Richard Bonnie, Casey, et al, p. 2.

81Libby Rozbruch, op cit.

82Libby Rozbruch, ibid.

83Libby Rozbruch, ibid.

84Libby Rozbruch, ibid.

85Cambridge Dictionary [2022] Available online: https://dictionary.cambridge.org/dictionary/english/mendacity [November 2, 2022].

86David McCabe, Alan Castel and Mathew Rhodes, op cit.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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