Let's embrace meditation in dispute resolution
By Justin N Kimani
| January 23rd 2019
The launch, by the Chief Justice, of the Alternative Dispute Resolution (ADR) mechanism in June, 2017 may have been seen as reducing backlog of cases in the courts, as the main objective.
Just as important is that it of also ushered in the dawn of an era of peaceable, less costly, confidential, expeditious and party controlled dispute resolution.
Mediation, one of such approaches is a dynamic, structured, interactive and voluntary process parties choose, where a neutral third party, the mediator, agreed upon by the parties, or court accredited, assists in resolving conflicts.
It is an internationally accepted method of solution to disputes which replaces conflicts with harmonious relations devoid of bitter tastes characteristic of court judgements and reduces anxiety in the society.
In praise of mediation
Mediation is on "without prejudice" basis. The outcome shall not be used against either party as evidence should the case proceed to trial. Examples abound of disputes which - ordinarily would have taken years- but which have been resolved through mediation in a matter of days or hours.
The parties are ready to give up the previously held positions and are more amenable to appreciating each other’s interests. This has the added benefit of preserving the relationships the parties, their relatives and community, enjoyed before the dispute.
The shorter duration, for example, in resolving land disputes and succession cases, minimize anxiety and resolves family, community conflicts and social tensions occasioned by the prolonged dispute, fostering an overall healing and peace to the nation.
Enforceable in court
The mediation agreement is fully enforceable in court in the unlikely event of default in its terms by either party.
Embraced worldwide, it is deemed a corruption-free approach and a sine qua non of national good governance. The authoritative King III Report on corporate governance sees mediation as the preferred option in the management of stakeholder relationships.
Alternative Dispute Resolution entrenched in the Constitution recommends the promotion of ADR mechanism as a principle in exercising judicial authority.
The mediator, through training and experience, possesses specialized communication and negotiation skills and techniques to assist the parties negotiate a settlement of any nature and magnitude to find mutual optimal solution. The mediator acts as a neutral facilitator and guides the parties through the process by broadening the range of possible solutions without making judgement or apportioning blame, thus leading to a win-win situation.
It can be used in commercial, labour, family, community, inter and intra-state disputes of any magnitude
Mediation can function as a means of dispute prevention, such as the process of contract negotiation. Governments can use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-making.
Mediation is ancient. It developed in Ancient Greece, then in Roman civilization.Some cultures regarded mediator as a sacred figure worthy of particular respect. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts.
The practice of mediation is worldwide. USA is regarded as the forerunner of modern mediation practice. Canada, Australia, New Zealand and the UK rank high in the practice. It is also practiced in Africa, Asia, the Middle East, Eastern Europe and the EU.
The Chinese do it too
Chinas meteoric growth, has brought about the need to look outward to outdo its competitors. China operates the largest and most extensive mediation programmes in the world that resolves disputes more efficiently and effectively than litigation.
In Malaysia, a major international trade centre, the government has adopted mediation by traders in and out of the country."
The mediation movement in Singapore is used for private disputes and as an essential part of the legal system.
Nigeria, like Kenya, has improved dispute resolution methods by speeding up and reducing the cost of the delivery of justice through training mediators and trainers locally. Nigeria’s Chief Justice has appointed a mediation High Court Judge and opened up practices in 33 national Court Centres.
Mediation is, therefore, worldwide and prudent and should be embraced fully.
For the goals of the new approaches to dispute resolution to take root efficiently and effectively, intensive civic education is needed.
Mr Kimani is a consultant in conflict management and a psychologist
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