Why we should back mediation as a better way to solve disputes

Chief Justice Martha Koome. [Boniface Okendo, Standard]

The efforts by Chief Justice Martha Koome to strengthen Alternative Justice Systems (AJS) and Alternative Dispute Resolution Mechanisms (ADR) including through Court-Annexed Mediation are commendable.

They should be supported with resources and political goodwill because of the many benefits that accrue from them. ADR focuses mainly on resolution of disputes while AJS goes beyond resolving disputes to include dispute prevention, minimising or ending recurrence of disputes, and supporting integration offenders so that they do not re-offend. Both mechanisms are beneficial to the Judiciary and their subsets include mediation, conciliation, neutral evaluation, mini-trial and arbitration.

My favourite is Mediation, not because I am a professional mediator, but because when it is successful, it is the best option in resolving disputes that can be mediated. The parties have control over the mediation because the process is self-determining and party-centred.

It is also participative, and voluntary, any of the parties can leave at any stage if they don't want to continue with it. It is informal, simple, and flexible and is conducted in a cordial and conducive environment that allows parties to compromise by giving and taking to arrive at an amicable solution.

Most importantly, it is speedy, efficient, and economical. Some intractable disputes that have consumed millions of shillings in court without a determination are resolved through mediation in less than a week and for a tiny fraction of the money spent in court.

Mediation means fewer cases will be taken to court thereby easing the backlog of cases and improving quality of courts' determination of cases. It is collaborative and non-confrontational and focuses on mending and maintaining good relationships. There are many win-win outcomes in mediation such as conciliation, which is also a voluntary and informal process in which a complainant and the respondent are given an opportunity, guided by a professional facilitator, to discuss and try to resolve a dispute such as one between employers and workes.

Mediators are professionally trained and equipped with communication skills, empathy, emotional intelligence, and negotiation techniques to guide the process and provide an opportunity for parties to settle their disputes themselves.

The role of a mediator depends on the three styles of mediation, settlement conference, facilitative, and transformative, which broadly entail the mediator impartially and in a neutral manner working together with the parties to facilitate the mediation and manage the interaction between them, encouraging and promoting their communication with each including managing outbursts, and interruptions, and motivating the parties themselves to arrive at an amicable written settlement, which they agree to enforce and can be registered with the court like a court order.

Specifically, the mediator manages the mediation process, gathers information, and frames the issues by helping parties to effectively and actively communicate with and understand each other, defining the issues, helping parties to brainstorm on various options and to express their feelings, acknowledging their views and their feelings and unlocking deadlocks and impasses.

The mediator also hosts the process, tests reality and workability of views and proposals, writes down in a visible place/flipchart the framed issues, brings knowledge/expertise, trains the parties in mediation, and supervises the processing and drafting of a clear, concise and enforceable settlement.

Exceptions to mediation include illegal actions or commission of crimes, applicants for employment, former employees, alleged violence, egregious harassment, adverse actions, class actions, judicial reviews, and when authoritative resolution of a matter is required in precedent-setting cases, or when it is a matter of national security or protected issues or when the dispute has significant government policy implications, or in cases that are important for a full public record of the proceedings to be produced and shared.

AJS and mediation are the best methods of dispute resolution to ensure good relations and comprehensive resolution of disputes, including conciliation and reconciliation are achieved and sustained.