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A future cultured in mediation

Meditation is a voluntary, confidential, and non-binding process in which an impartial third party facilitates negotiations between parties, helping them reconcile and settle. Once a settlement is drafted and signed by the parties, it becomes binding upon them. It is a party-centered process focusing on their needs, interests and priorities. It is often employed but not limited to commercial, diplomatic, workplace and family domains. The mechanism is fast, flexible, cost-efficient and convenient. The parties have autonomy over the process, forum and result. It also helps rebuild and sustain a good relationship between parties.

Mediation is not a new concept in Kenya. Since time immemorial Kenyan communities have used it to settle conflicts. It was used to resolve all manner of conflicts: domestic, land, and community conflicts among others. It was not foreign to find community members seated together in informal settings, led by elders, to deliberate on conflict settlement. It was instead a way of life. Though formal, this mechanism is still applied in our nation years later. It has been spiced up by enacting laws recognizing its role in enhancing access to justice and peaceful coexistence.

Accessing justice through mediation in Kenya

Justice is an essential societal value whose definition varies from society to society. It characterizes concepts of fairness, equality, and equity. It is vital for the rule of law, enhancing a country’s stability.

Access to justice is affording people equal, timely, and affordable legal access needed for a fair remedy. Making the parties walk away with the satisfaction that, indeed, justice was served. It is a constitutional imperative mandating the state to ensure all its citizens enjoy the right mentioned above without due regard to procedural technicalities, and costs. It can be achieved through formal or informal dispute resolution mechanisms. However, the inadequacies of the formal system, such as its cost-intensiveness and delays leading to insurmountable backlogs have hindered the realization of the aforementioned right.

This has propelled the state to employ informal systems to cure the inadequacies and enhance access to justice. Mediation being an informal dispute resolution system, is one such system.  The state has taken significant steps in embracing mediation as an alternative dispute resolution mechanism. These include, among other things, recognizing mediation in the Constitution, introducing court-annexed mediation and promoting private mediation.

The promulgation of the 2010 Constitution spearheaded the growth and development of mediation. Under Article 159, the judiciary is mandated to be guided by alternative forms of dispute resolution, including negotiation, mediation, arbitration and traditional dispute resolution mechanisms. Laws such as the Civil Procedure Act and the Civil Procedure Rules were amended to breathe life into the above article.

Subsequently, the judiciary launched a Court Mediation Pilot Program in the family and commercial division of the High Court in 2016. This facilitated the conducting of mediation under the aegis of the court. Cases brought forth to court would be screened and referred to mediation at any stage, be it upon filing or closing of pleadings, for possible settlement. Screening is conducted by a mediation deputy registrar or another authorized court officer. This has seen the creation of the Mediation Accreditation Committee, whose function is to accredit mediators for credibility and to standardize and promote the quality of services offered through training. Courts implementing CAM are required to establish mediation registries to handle mediation cases. So far, 43 mediation registries have been established in 110 courts in Kenya.

The judicial embrace of mediation has enabled the speedy resolution of cases, the affordability and flexibility of dispute resolution, and the release of 16 Billion Shillings locked up in litigation to the economy. The state also promotes privately conducted mediation by registering private settlement agreements guaranteeing enforceability. This reduces the risk of non-compliance with the settlement by the parties, giving mediation a binding nature.

One reason why one should choose mediation is that there is party autonomy. The parties get to control the process by choosing a mediator of their liking, setting up rules and procedures to govern them during the mediation process, and coming up with solutions to the problems. This ultimately leads to satisfying results, increasing the chances of following through with the settlement agreement. Additionally, the process is more convenient for the parties as they get to discuss with their mediator and pick dates, times, and places for conducting mediation sessions that work for them. Further, compared to litigation, the process saves on cost due to its speedy nature. It is also confidential, preceded by the signing of a non-disclosure agreement, whose effect is to ensure that what is said in mediation sessions is not revealed elsewhere and whose breach will lead to unwanted consequences. This creates great confidence in the process and the mediator. Lastly, mediation helps rebuild and preserve relationships. This is through creating a table of communication between parties that enhances the understanding, leading to a reconciliation of their ideas.

Despite its benefits and the momentum it is gaining, mediation faces many challenges that threaten to hamper its efficiency. It is critical for a nation looking forward to a future cultured in mediation to recognize and address its betterment challenges.

Challenges facing mediation

Lack of awareness of mediation as a conflict  resolution mechanism

Access to information is a vital element of access to justice. It empowers people to make informed choices on the route to take when dealing with conflicts. It is a right to impose a positive obligation on the state to ensure its citizens enjoy it. Despite this, many Kenyans are unaware of mediation, its process and its benefits. For maximum enjoyment of the right to access justice and the benefits of mediation, people should be informed of diverse conflict resolution mechanisms, their processes and benefits.

The state should employ methods of providing information on mediation that reaches many people, such as personalizing information to meet people’s needs and circumstances. This will increase awareness, promote mediation and enhance access to justice.

Inaccessibility of mediation training due to high costs

Most institutions offering mediation training and certification provide it at a high cost, making accessing it difficult for most people. This, in turn, limits the number of qualified mediators released into society, threatening the future of mediation. There should be a system of subsidization of the cost of the training to increase the number of certified mediators in society for the growth of mediation.

Lack of a national regulatory framework for mediation

The lack of a national regulatory framework that governs the mediation process, such as a parliamentary Act, hinders the efficacy of mediation. Besides the diverse, fragmented rules set by different institutions, there is no regulatory framework. Such rules include the Mediation (Pilot Project) Rules 2015 of the judiciary, the Nairobi Centre for International Arbitration Rules (Mediation) Rules, 2015 that govern mediations conducted in that center, and the CIArb Mediation Rules 2018. This causes a lack of uniformity and certitude regarding mediation, its process and its procedure.

A national regulatory framework would be imperative to drive the boat of mediation to greater seas of justice.

Conclusion

Mediation plays a key role in facilitating the speedy and efficient resolution of cases. This has greatly reduced the backlog of cases in courts. Its numerous benefits, such as flexibility, cost-effectiveness, and convenience make it an attractive tool for conflict resolution. In defiance of its greatness lay challenges that seek to influence its efficacy. We as a nation should stay woke and work towards paving a brighter future for mediation.

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Guest author for The Platform Magazine