The Mt Kenya Times 
By David Ndirangu Worth Noting:
- Mediation as a form of dispute resolution is an old and natural method that has been practised by many of the world’s cultures for ages. Mediation is recognized by the Kenya Constitution 2010, Article 159 (2) (c) as a form of Alternative Dispute Resolution (ADR) among others like negotiation, conciliation and arbitration. Professional mediation albeit bearing a similarity to the age old practice has through research been modernised and structured in line with internationally accepted standards.
- Mediation thus refers to a process where parties resolve their disputes with the assistance of a neutral, independent and impartial person called a mediator.
A story is told of a mother and her twin daughters. One day she found the girls fighting over an orange. It was quite a heated argument that required her intervention to avoid escalation to a real fight. Like every other ordinary mother she suggested that she cuts the orange into two where each girl would take a half. They did not want to hear anything like that. It is at this point that an ordinary mother from my village in Tetu where I was born and brought up would have snatched the orange from the girls, sat down somewhere under a tree to eat it as they watched. She would have enjoyed the delicious fruit while all the time telling them, “Nīmūkūgīa mītwe” meaning “you will have to start using your heads.” “Stop fighting over petty issues”.
The mother from Tetu would have been doing her best to resolve the conflict between her daughters but in real sense she would have started a new conflict this time between herself and the girls. Let us look more closely at the above conflict. Each of the girls wanted the full orange. That was the position of each girl and it is what they were fighting about. When the mother asked the girls why they needed the orange, the first girl said that she wanted to make orange juice while the second one needed the orange peelings to use in baking a cake. This is referred to as their interests. This being the case there was seriously no reason to fight in the first place. A professional mediator would have been able to differentiate between the positions and interests of the two girls (the parties).
It is believed that human beings have by nature an inborn desire to live in peace amongst themselves. However, the peace is usually upset by conflict which originates from real or perceived threats to human needs. It is normal for human beings to have disagreements as a result of differing values, needs, interests, or at times a desire to pursue ones goals at the exclusion of the other person’s goals. Disagreements lead to disputes, disputes lead to conflicts which lead to fights or war. The reality is that conflict is inevitable in society.
Mediation as a form of dispute resolution is an old and natural method that has been practised by many of the world’s cultures for ages. Mediation is recognized by the Kenya Constitution 2010, Article 159 (2) (c) as a form of Alternative Dispute Resolution (ADR) among others like negotiation, conciliation and arbitration. Professional mediation albeit bearing a similarity to the age old practice has through research been modernised and structured in line with internationally accepted standards.
Mediation thus refers to a process where parties resolve their disputes with the assistance of a neutral, independent and impartial person called a mediator. It is a voluntary and informal process carried out in a private friendly environment where parties are free to discuss with the mediator as to when and how to carry out the process. They also agree on the ground rules right at the beginning in order to make the process orderly and ensure that parties conduct themselves honourably.
In mediation the parties decide on how to resolve their dispute – the mediator is just a facilitator who assists the parties reach a negotiated settlement. Mediation is a confidential process in that all information and discussions arising from the process are held in strict confidence both by the parties and the mediator. Such information cannot even be produced as evidence in a court of law except in some cases where information relating to an incidence of a criminal nature comes up in the mediation process.
Parties are expected to commit to come to mediation in good faith and with goodwill. They should also be willing to discuss with openness and full disclosure of the issues. They should be ready to cooperate with the mediator during the entire mediation process. Over and above resolving the conflict, mediation aims at restoring and improving the parties’ relationship going forward. The parties are at liberty to call for a termination of the mediation process if they feel that it is not working to their expectations. The mediator may also terminate the process if he feels that it is not likely to produce the desired outcome.
There are several advantages of mediation over litigation as a form of conflict resolution. It is a faster and relatively inexpensive process which can be used by the rich and the poor alike. It can be used for multimillion shillings disputes and even minor disputes in the local community.
Mediation is a relationship building process where parties have an opportunity to rebuild, remedy and restore broken relationships be they personal or business related. “Never cut what you can untie” – Joseph Joubert – French Essayist.
In mediation, there is a higher level of compliance with the settlement agreement since the resolutions in the agreement belong to the parties. Unlike in litigation, mediation is non-adversarial in that there are no plaintiffs or defendants – parties come up with their own decisions.
All manner of disputes can be referred to mediation. However, most cases of a criminal nature, those cases where parties have unequal power and others where violence is involved including human rights abuses are best resolved through the court process.
Mediation is not meant to be a replacement for litigation, however, as more and more disputes all over the world are increasingly being resolved through mediation, litigation is proving to be a slow, costly, cumbersome, inadequate and in most cases unnecessary method of resolving conflict.
In the book ‘The Magic of Mediation’, renowned Mediation practitioner and Trainer Dr. Joy Mbaabu states, “…They (parties) will reason that if they come on one side and cooperatively tackle their problem, each will get their needs and interests addressed. They will go away happy and perhaps with a redefined relationship. The mediator plays the role of creating an environment for parties to engage constructively. Here lies the power of mediation that I have found magical.”
Mediation works…and it’s truly magical. Try it!
David Ndirangu Certified Professional Mediator Email ndirangudavid2023@gmail.com
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