What is Mediation Anyway?

Mediation is a dispute resolution mechanism in which the parties in a dispute refer their dispute to an independent neutral third party, known as a mediator, who assists them in attempting to settle the matter. The mediator aids the parties in navigating through the dispute by narrowing down positions on the issues. Ultimately, the role of the mediator is to help the parties arrive at a mutually agreed position, which is referred to as a mediated settlement. Traditionally, these disputes may be disputes between private parties before they are filed in court, or those already filed in court in the event of court-annexed mediations.

Fundamentally, participation in the mediation is voluntary by the parties, except where governed by statute or a clause in a contract.

How is it Different from Arbitration?

The main difference between arbitration and mediation is that in arbitration the arbitrator hears evidence and makes a decision. Arbitration is like the court process as parties provide testimony and give evidence similar to a court trial but it is usually less formal compared to litigation. In mediation, the process is a negotiation with the assistance of a neutral third party. The parties do not resolve unless all sides agree.

Mediators do not issue orders, find fault, or make determinations. Instead, mediators help parties to settle by assisting with communications, obtaining relevant information, and developing options.

Arbitration, on the other hand, is generally a more formal process compared to mediation. An arbitrator could be a retired judge, a senior lawyer or a professional such as an accountant or engineer. During arbitration, both parties are allowed to present their cases to the arbitrator and may call witnesses. During arbitration, there are usually few if any out-of-court negotiations between parties. The arbitrator has the power to render a legally binding decision called an Award, which both parties must honour. The Award is enforceable in our courts and courts in other jurisdictions in cases of international arbitration.

Court Annexed Mediation and their Impacts on Court Disputes

Since the promulgation of the  Constitution of Kenya 2010, new laws have been enacted and others amended to unify them into conformity with Article 159 of the Constitution which introduces the notion of justice being done to all irrespective of status and without delay. Further, alternative forms of dispute resolution including reconciliation, mediation and traditional dispute resolution mechanisms have been incorporated in the legal framework.

The law now requires reference to compulsory mediation of all suits, which in the court’s opinion are suitable for mediation.

Court Annexed Mediation was first Piloted by a task force within the Judiciary at the  Milimani Commercial Division and the Family Division of the High Court from April 2016 to May 2017. The task force led by Justice Fred Ochieng that was gazetted to oversee the implementation of Court Annexed Mediation has seen the adaptation of the program in various courts across the country.

It is expected that the implementation of court-annexed mediation will increase efficiency at the Judiciary and enhance access to justice.

Place of Mediation within Organisations

The beauty of mediation is that it can be simply applied in every area of life, and especially within organizations. As a proven concept, organizations can tap into mediation as a form of dispute resolution to minimize and mitigate the costs associated with disputes. They can use them externally in their contracts and engagements they have with the outside environment, as well as internally in managing employee-employer or employee-employee disputes.

This article was initially published in the Above Standard Issue 6 available here and re-written for the Daily Nation special report covering Alternative Dispute Resolution mechanisms in Kenya published on 21st May 2021