Mediation as an alternative dispute resolution method

In the heat of the latest wave of insecurity, the President, while speaking tough on security, said, among other things, that there will never be a police officer for every person and that every person is responsible for their own security.

I could not have agreed more with that statement. In the last few days, since President Uhuru Kenyatta spoke, I have thought how appropriate that statement is for every situation.

On matters health, Kenyans have resorted to taking charge of their situation. Some have embraced our traditional farming and eating methods, others have embraced herbal alternatives while others have had to travel to far flung destinations like India for better medical services.

In matters legal, however, I feel we have not quite internalised the need to take charge of our dispute resolution mechanisms as well as we have done elsewhere.

Arbitration and mediation are alternative ways of dispute resolution recognised internationally. Arbitration is a process by which the parties to a dispute submit their differences to the judgment of an independent person or group appointed by agreement or through a provision of the law.

I wish to focus on mediation, in which a neutral third party called a “mediator” facilitates negotiations between two or more adverse parties. It is also referred to as assisted negotiation where the mediator helps the parties reach their own solution, in private. It is voluntary and non-binding until reduced into writing and signed by the parties.

It is without prejudice meaning what is said and produced to the mediators cannot be used if the case does not settle and ends up in court.

It has also been said that mediation puts the power of a solution back into the hands of the parties who are most affected by the dispute and enables them construct a solution that works for them.

No one imposes a solution, no one tells them what the answer is and no one wins or loses. The deal is whatever the parties decide as long as it is legal and the mediator’s job is to help parties to achieve that deal.

The best illustration of the power of mediation is contained in a handbook by a well-known Mediator, David Richbell FCIArb. It says in summary that when a person has a dispute which he cannot negotiate out of, the next step is usually to consult a lawyer. Inevitably, the lawyer puts a legal framework around the dispute and it becomes a legal argument, no longer a commercial problem.

Thereafter the argument is about legal rights and interpretation of facts in dispute. The longer it goes on, the more the commercial dispute recedes and the costs increase.

What mediation does is to open the legal framework, for a day, and allow the dispute to be in focus again. The legal arguments largely fall away and the lawyer’s role becomes one of advice and support as the parties negotiate a settlement that meets their needs.

The same can be said of a custody dispute; when parties have a dispute over their child that they are unable to resolve, they are likely to approach a lawyer who will put a legal framework around the dispute. It becomes a legal argument and phrases like joint or sole legal custody, physical custody, care and control, access take precedence.

What mediation does in such an instance is to allow the child be in focus again. The legal terminologies fall away largely and the parents are enabled to focus on their child and the needs of that child.

Let us mediate and seek settlements that most suit us.