Have a Dispute? Why you should strongly consider mediation
The first human who hurled an insult instead of a stone was the founder of civilisation. Sigmund Freud—Austrian neurologist (1856 – 1939).
The statement spotlights the role of discussion, heated or not, in the resolution of disputes. Mediation is one of many forms of Alternative Dispute Resolution (ADR) recognised in Kenya.
Amendments to the Civil Procedure Act in 2012 introducing sections 59(A-D) which legislate court-annexed mediation and the Mediation Pilot Program being undertaken by the Kenyan judiciary is sufficient proof that the courts, the legislature and practitioners appreciate the role of mediation in the resolution of disputes.
Mediation as a dispute resolution mechanism does have several advantages and each litigant, actual or potential, ought to discuss the possibility of mediation and whether it would be viable in each dispute.
- Mediation is comparatively affordable
Certified Professional Mediators (CPM) always make it clear to disputants that they own the process. The disputants are in control of not only the outcome but also how long it takes.
The mediator is only a conduit for communication between the parties and for identification of issues for discussion and possible agreement. Most CPMs will have a fee agreement in place and the fees will be based on hourly rates or a fixed charge thereby bringing certainty to the process.
Compared to other forms of ADR and to litigation, mediation is relatively cheaper.
- Mediation is faster
Most legal practitioners and litigants have at one point or the other heard these words “the court is not sitting” or “the matter cannot be reached”. Courts, being public dispute resolution centres, cannot choose which disputes will be filed and which will not. They must hear everyone who comes to seek justice and they cannot say that they have enough cases and will take no more.
Mediation, is a private process. The meetings will be on mutually convenient dates and venues and rescheduling will not be in months or years but merely weeks or days. A CPM will identify issues and address them in order of difficulty and at the first mediation meeting, most non-core issues can be quickly resolved. With the good-will of the disputants, a dispute can be mediated within weeks, saving the parties costs and time.
- Collateral damage is minimal
Because successful mediation results in mutually acceptable terms of settlement and is a private process, the damage to relationships is minimal.
Be it the mediation of a family dispute such as custody of children or inheritance entitlements or even a commercial dispute, underlying relationships can be preserved.
- Simplicity and flexibility
Most litigants become overwhelmed by legal terminologies thrown around in court as well the procedural technicalities which drive the court process. Understanding their dispute and by effect the advice given by legal advisors becomes difficult, if not impossible. A party, more often than not, will agree to whatever advice is given because he or she is ignorant as to the reasoning behind the advice.
Mediation is a simple process with little to no procedural aspects. If a disputant understands the nature of the dispute, why the opposite party cannot let go of certain positions, he or she becomes empowered
and gains the ability to end the dispute by shifting his or her position, losing some and gaining some.
Quote: “…The un-awakened mind tends to make war against the way things are. To follow a path with heart, we must understand the whole process of making war, within ourselves and without, how it begins and how it ends. War’s roots are in ignorance…”
Jack Kornfield: A Path With Heart: A Guide Through the Perils and Promises of Spiritual Life
The role of the mediator becomes clear – to bring to light these hidden footholds, facilitate the exchange of communication otherwise suppressed by egos and emotions and empower both parties to shift positions so as to bring the dispute to a mutually beneficial settlement.
- Enforcement is rarely necessary
Because of the mutual nature of the settlement reached, there is a lot of goodwill involved and parties would rarely have to turn to the Courts to enforce the terms of a binding settlement agreement.
Parties would rarely commit to settlements which they cannot afford to deliver on and most settlement agreements are voluntarily honoured. Due to the goodwill and intact relations after mediation, settlement agreements can be mutually varied to suit unforeseen circumstances.
A settlement agreement is binding upon the parties and will not be set aside by the Court lightly. The threshold for setting aside a settlement agreement is very high as the applicant will have to prove fraud and/or legal incapacity to enter the settlement agreement.
. No room for continuous litigation
As the dispute will have been settled fully, and as the mediator does not determine the dispute, there is would be no room for appeal or review, features common to litigation and other forms of ADR such as arbitration which can keep continued litigation going on for months or even years.
- Seek an opinion from your legal advisor as to whether mediation is a viable option. The nature of your dispute may not be suitable for mediation
- Read carefully and understand any draft mediation agreement before approving the same
- Understand the basis of the mediator’s charges and other additional costs such as venue, negotiate a deposit and understand when further payment will be expected
- Confirm that the proposed mediator(s) is/are qualified to conduct the mediation
- Never propose mediation without consulting a legal advisor as you could unknowingly make admissions that can be used against you if the mediation fails.