HAND BOOK ON
Federation of Women Lawyers - FIDA KenyHAND BOOK ON
MEDIATION
Federation of Women Lawyers - FIDA KenyaaC) gi
Aknowledgement
FIDA Kenya's Access to Justi oe beoairania tes
don training i
ng women and
erati
ticularly Nao
Maria Goretti Ny
Wagereka,
iki, Dorcas
on mediation in a simple and reader
manner for FIDA Kenya elie
strategic partners.
organization.
We sincerely appreciate the teamwork of all
FIDA Kenya staff members,
We extend our sincere and utmost gratitude
ju Kairu
e Onsare for editing
wrot
he invalua
tand form. wally thank Noel Creative Media Limited
for their input, layout and publication of this
Handbook,
incerelythank FIDA Kenya staff partioul
ueline Ingutia, Jane
ith Okal and all other FI
Staff in all the three
endless efforts to ensure the re
and publication of this Handbook,
eee eeeFIDA Kenya is a non-profit, non-governmental membership
organization providing legal aid and education amongst other
services geared towards the enhancement of the legal status of
women in Kenya.
With a view to enhancing family unity and mutual respect FIDA
Kenya initiated and runs a mediation program under which FIDA
Kenya seeks to avail its clients of an opportunity to amicably
resolve disputes through mediation,
The aim in developing this handbook is to make available to
FIDA Kenya's mediators, members, clients and staff simplified
information to help in gaining a better appreciation of
alternative dispute resolution with particular emphasis on
mediation.
This handbook is divided into five parts for easy reference. It
explores different forms of ADR, the mediation process, disputes
Suitable for mediation and benefits of mediation.
Further the handbook also highlights the
challenges one is likely to encounter in
mediation, the different perceptions
and misconceptions of mediation.
MEDIATIONB. Introduction
Alternative Dispute Resolution commonly known as ADR refers to
@ range or variety of procedures for resolving disputes instead of
resolution through the court process,
The court system certainly plays an important and critical role in
dispute resolution in Kenya and the world over. It however has
challenges that encourage parties to seek alternative ways of
resolving their disputes.
There are several challenges people face when seeking to resalve
disputes through court systems, They include:
Courts havea heavy case Load relative to the resources available
to the courts resulting in a backlog of cases,
Cases take too long before they can be heard,
Most of the hearings are generally conducted in public and
therefore there is no confidentiality or privacy in courts,
Courts are not flexible enough due to their technical rules and
procedures,
The courts are located in district or divisional headquarters
and are physically far away and inaccessible to many people
who may want to access them,
The parties surrender the control ofthe process to the Judge or
Magistrate and itis rare that relationships between parties are
mended.
For these and other reasons there is need and justification for seeking
alternative ways of resolving disputes.
MEDLATIONThe alternative process may involve:
1. The parties discussing or communicating or negotiating directly
amongst themselves or through their representatives;
2. Theintervention and assistance ofan independent and impartial
third party who facilitates the negotiation.
3. Or also take the form of a private judicial process in which the
parties employ an independent and impartial third party who
after receiving evidence and arguments from the parties or their
representatives makes a binding decision for the parties.
4. Ortake other forms as well including assistance from traditional
or customary and religious institutions.
The expression “Alternative” could be misleading to the extent that it
might suggest procedures for resolving disputes in place of the court
process. ADR encompasses a range of procedures from which parties
having a dispute can choose it in addition to court process.
Indeed it has been suggested that word
“Alternative” should be replaced with the
word “Appropriate” to the extent that
parties in dispute can choose the most
appropriate method or procedure for
resolving their particular dispute.
Different processes may best be EA
suited for different kinds of disputes. ge"| Forms of Alternative Dispute Resolution
a. Negotiation
Negotiation is a dialogue intended to resolve disputes, to produce
an agreement upon courses of action, to bargain for individual
or collective advantage, or to craft outcomes to satisfy various
interests.
Negotiation is perhaps one of the most common forms of dispute
resolution. People negotiate all the time. Whether it is parents
discussing which school the children should attend, or how to
discipline their children, or estranged partners discussing financial
arrangements after a divorce they are consciously or unconsciously
engaged in negotiation. Negotiation is communication for purposes
of persuasion. It is communication between two or more people for
the purpose of arriving at a mutually agreeable solution. There are
skills that can be learnt to enhance negotiation.
b. Mediation
Mediation is a process where an independent and impartial third
party facilitates the negotiation process between the disputing
parties. The third party, the mediator, is not a decision maker like a
judge or a magistrate. Decisions are made by the parties themselves
with facilitation from the mediator. Mediators need to have been
specifically trained in conducting mediation,
c, Arbitration
This is a process of dispute resolution involving one or more
independent and impartial third party (ies) who is identified and
agreed upon by the disputing parties makes a decision, which is
based on the merits of the case. The decision is legal and binding
on the parties like a judgment of a court of law. The decision is
called an AWARD. This process is similar to the court process to the
extent that the arbitrator or panel of arbitrators, like a judge or
magistrate, makes a binding decision for the parties after receiving
evidence and arguments from the parties or their representatives.
Arbitration can however be adopted to suit the specific needs
ae. Informal or Community Based Dispute Resolution Mechanism
and circumstances of the parties and is usually quicker and more
efficient than the court process. Arbitrators are also specifically
trained in the conduct of arbitration sessions.
Many disputes in Kenya never reach the courts and are resolved
through Informal Justice Systems dispute resolution processes. This
may be at the level of immediate extended family or clan level. It may
also be at a higher level of social organization for example through
councils of elders and religious leaders,
Mini-trial
In some judicial systems or countries, there is room for disputants
to voluntarily participate in a process where the disputants or their
lawyers present brief arguments to.a judge who will not preside over
the case if it goes to trial.
The judge hears the summaries and meets with the disputants and
‘their lawyers and together they attempt to resolve the dispute.
Pre-trial conference
Advocates present an overview of their respective cases to a pre-
trial judge who provides a non binding opinion as to how the case
would likely be resolved at trial,
Expert Determination
Expert Determination is a process where parties to a dispute refer
a specific aspect of a dispute to an expert who, through his or her
skill or knowledge in the particular subject, gives an opinion on the
basis of which the dispute is determined.
Early Neutral Evaluation
This is a process where parties to a dispute retain a respected
third party neutral to provide them with an early neutral
evaluation. The disputants/their advocates present
their cases to the evaluator who then provides an
opinion about the likely outcome of the case were it
to proceed to arbitration or trial.i. Adjudication
Adjudication is common in the construction industry. It is a
procedure by which any party to a construction contract has a
right to have a dispute decided by an adjudicator. It is intended
to be quicker and more cost effective than arbitration or litigation.
Although most types of disputes can be adjudicated, it is normally
used to ensure payment. The adjudicator must generally decide the
dispute in less than 28 days or such period as may be agreed. The
adjudicator’s decision is binding on the parties until the dispute
is finally decided by arbitration, litigation or any other agreed
process.
j. Arbitration/Mediation Hybrid
Disputants present their cases to a third party neutral who acting
as an arbitrator prepares a decision. The arbitrator then becomes
a mediator and attempts to facilitate resolution. If resolution is
reached during mediation the decision prepared by the third party
neutral is destroyed. If disputants are not able to reach resolution
during mediation, the decision of the third party neutral is released
tothe parties and they are bound by it.
k. Mediation/ Arbitration
This is @ hybrid process where the third party neutral begins the
process in the role of mediator. If mediation does not result in
resolution the mediation ceases and mediator becomes an arbitrator
who then renders a binding decision. This process is the reversal of
the Arbitration/Mediation Hybrid.
The Mediation Process
a. The Nature of Mediation
4s indicated earlier mediation is a process in which an independent
or neutral third party without the power to decide or to impose a
solution helps the parties to resolve a dispute. Atits most basic level,
itis facilitated communication.
MEDIATIONIt is a confidential, voluntary, party controlled, mon adversarial
process. The mediator provides the foundation for a bridge between
the parties.
The mediator must be the quardian of the mediation process. Hef
she must maintain confidentiality. All communication made to the
mediator during the process must be held in the highest level of
confidence.
The privacy of the process is one of the features of mediation which
allows it to be a useful dispute resolution tool. The parties must be
able to provide sensitive information freely. In instances where the
mediator holds private sessions with each of the parties, referred
to as caucusing, he should disclose that each party's session is
confidential.
Atthe end of the private session, he can then ask which information
he can share with the other party. The mediator should make sure
that the process is voluntary. The mediator is supposed to inform the
parties that irrespective of the influencing factors, once mediation
begins, each participant has the right and the power to end the
process if he/she does not feel as ifthe process should proceed.
Mediation is dynamic and the process may vary from case to case,
The mediator should:
i. Be aware of cultural differences/ practices;
Have a clear concept of the dispute;
iii. Create and exploit opportunities to transform the disputants’
relationships;
iv, Bein full control of the process;
v. Build consensus through recognition of parties’ interests
and concerns; 3s Ferry
vi Clearly explain the process to the disputants;
vii, Practice active listening skills to uncover the
interests of each party.b. Stages in mediation
The mediation process may be structured in different ways to suit
the particular circumstances and needs of the parties. The model
suggested here is only one of many possible models,
The process can be structured in away that incorporates the following
components or stages:
Stage one: Introduction and the Mediators’ opening statement
which is sometimes referred to as setting the table.
» The objective of this stage is to establish and maintain a structure
for the mediation, a positive and open atmosphere for resolution
seeking, trust and confidence, establish communication channels
and establish rapport;
The mediator will begin the process with introductions; he
or she will familiarize the parties with the process, set the
atmosphere for the process and create a positive resolution-
seeking attitude among the parties;
He or she will establish and maintain trust and confidence in
the process, establish rapport between the parties, negotiate
and establish ground rules e.g. that everyone will have an
opportunity to speak and should be accorded opportunity to do
so without interruption, discuss conduct, civility and respect;
Whether caucuses will be held and the rules of caucusing;
Whether mediator will be at liberty to make suggestions BUT
NOT decisions;
Establish parameters of confidentiality;
Mediator can terminate process;
Each party can terminate process at any time.
Stage two: Narration or presentation by the parties also sometimes
referred to as story telling.
Each party has an opportunity to provide his or her perspective of
the dispute or present their version of the facts preferably without
interruption,
MEDIATIONThis does not only give the parties opportunity to vent or let out
their frustrations and express their anger and emotions but it also
helps the parties to understand each others’ perspective of the
facts, interests and issues.
It also helps the mediator understand the parties interests and
issues and to identify obstacles to resolution.
Ttalso provides an opportunity for the parties to hear, directly from
the other party, that other party's perspective.
The mediator needs to be an active listener and may ask questions
and may seek clarification,
Stage three: Determining Interests
Once the parties have told their stories the mediator will clarify and
confirm the interests of the disputants by summarizing for each
disputant his or her understanding of the disputants perspective,
He or she checks with each disputant to ensure accuracy of mediator’s
understanding ofthe disputants’ interests and mayencourage parties
to speak directly to one another and to ask and answer questions,
clarify misunderstandings and offer acknowledgement,
Stage four: Setting Out the Issues
Having obtained clarification the mediator will then facilitate the
disputants to develop a list of issues with the object of helping them
focus on the specific matters oritems which must be resolved.
The objective should be to ensure that allissues which must be resolved
in order to resolve the dispute are identified. The Mediator should
ensure that the list is complete and frame the issues in a way that
promotes problem solving i.e. frame issues in a positive way and using
neutral language and in a way that invites option generation,
Stage five: Brainstorming Options
Having generated a list of issues the mediator ;
encourages the parties to generate options, The
mediator should aspire to get the disputants to
MEDIATIONexpress options with which they are familiar. The mediator should
also encourage the parties to be as creative as possible.
At this point the advantages and disadvantages of each option
should not be explored or discussed. The mediator should thus
encourage the disputants to suspend criticism but seek to establish
whetherthere were past settlement offers and focus the disputants’ |
attention to the problem rather than on each other. /
It is debatable whether the mediator should suggest options, as
there may be concerns of bias.
Stage six: Selecting Durable Options
Once all the options arein the basket the mediator willthen facilitate
negotiation between the parties. He or she will help the parties
explore the options against their respective Best Alternatives to a
Negotiated Agreement (BATNA), The Mediator will help the parties
pick realistic options for resolution for instance by encouraging
parties to use objective criteria to choose from among the options.
Caucus may be a useful technique for this purpose.
Final stage: Closure
The mediation will hopefully result in agreement, The mediator
assists the parties to make the transition from a preferred
settlement option to a settlement agreement. He or she should
ensure that the settlement deals with all the issues.
If there is no agreement, the mediator should acknowledge progress
made and explore prospects for use of mediation process in future.
Disputes commonly referred to Mediation
Mediation can be used in practically all types of disputes, Mediation is
particularly appropriate in disputes where:
a. The parties want to control the outcome of the dispute;
b. Personal or emotional barriers prevent settlement;
MEDIATION¢, Resolution of the dispute is more important to the parties
than vindicating legal or moral principles;
d. The parties have an ongoing relationship;
e. Parties are concerned about resolving the dispute in an
expeditious and cost effective way:
f. The disputes involve disagreements about the facts or
interpretation of the facts.
Examples of disputes that might be referred to mediation include
relationship disputes, family disputes, child custody disputes,
environmental disputes, land disputes, market competition disputes,
disputes with neighbours et al.
Mediation may not be appropriate in disputes where there is substantial
resistance to settlement by both parties, where there is a significant
mistrust grounded on past unfair dealings between parties or where one
of the goals is to ensure that there is public sanction against the parties.
Benefits of mediation as a dispute resolution
mechanism
+ Perhaps the single most important and significant benefit of
the mediation process is party autonomy, control and power;
» The parties themselves resolve their own disputes without
imposition of solutions from a third party;
> Parties are also able to focus on and maximize on satisfying
their respective needs and interests;
» Mediation is conducted in private, It is therefore a
confidential process.
> Parties usually choose the mediator.
» The process educates the disputants.
> Italso reflects the concerns and priorities of
the disputants.
MEDIATIONBe
Co
MEDIATION
Itis a flexible process that often results in creative solutions.
Participation in mediation may lead to a higher rate of
compliance.
It is also relatively inexpensive,
Mediation results in mending of relationships.
Mediation is a voluntary process and parties can opt outofthe
process atany stage.
Challenges one might encounter with the
mediation process
mmon challenges to effective mediation include;
Lack of trust among participants and poor communication.
Parties in conflictoften misunderstand each other's intentions
and messages and make negative assumptions about the other
side,
During caucus one party may feel prejudiced by the fact that
the mediator is probably spending more time with the other
party thus creating a hindrance towards fast and amicable
resolution of disputes. This challenge can however be overcome
if caucusing is discussed at the very onset of the process when
negotiating ground rules and the rules of engagement agreed
upon from the start.
. Parties believe that they have an alternative or option that
is better than what they will get through participating in
mediation
Tn the course of the mediation process, the parties might vet
a different definition of the problem. Essentially parties enter
into mediation with their own interpretation of the problem.
What issues are in dispute, why the problem has arisen, andhow best to resolveit. When this happens, the mediator should
get the parties to explain their view of the problem so that each
side sees how the other is framing the conflict. The mediator
should then help the disputants to redefine the way they think
about the dispute and work toward a common definition of the
problem
However the Mediator needs to note that should issues arise during the
mediation that may need the parties to attend counseling sessions then
the mediator could, with their permission, refer them to a counselor
they are comfortable
It is important that all the challenges listed can be addressed and are
not necessary fatal to the Mediation pracess,
G Some perceptions of Mediation as a dispute
resolution method
There is perhaps a perception, especially from people with
some experience in the court process, that mediation is an
ineffective process on account of its relative informality;
There is also a perception, certainly a misplaced perception,
that mediation takes food away from the table for lawyers.
when in factis should translate into more food for lawyers;
There is a perception, probably a misconception that mediation
means giving up anes legal rights,
There is also a misperception that mediation and settling
disputes amicably is a sign of weakness;
There is also a perception that any dispute resolution
1 process, including mediation, should be a fact
finding or evidence gathering process that should
result in a binding enforceable decision or a
judgment.clusio
Alternative Dispute Resolution and mediation in particular should be
fostered and encouraged because it is:
a.
b.
Faster than the court process;
Less confrontational or adversarial;
Encourages creativity in searching for solutions;
Results in improved communication between parties;
Results in more durable solutions;
Is less costly;
Is flexible;
Is less formal;
Is party controlled/driven;
Is confidential;
Is satisfying to the parties.
For the benefits of mediation to be fully realized the mediator must
ably discharge his many roles in the process, namely, the role of being
a convener, an educator, reality tester, a quardian of the process and
an independent and impartial intervener.
MEDIATIONCEUs
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