MEDIATION Course-Nairobi-Kenya

Preliminaries Introduction – building a learning community Name – more about self What motivated you to study this course?.

Expectations.

Norms.

Responsibilities.

INTRODUCTION The global trend currently is towards embracing Alternative Dispute Resolution mechanisms. Litigation has been the major approach to dispute resolution..

Mediation in Kenya has been embraced as one of the best ADR (Alternative Dispute Resolution) Our main objective is to equip you with skills and competencies to enable you to assist parties in disputes to reach a desired settlement.

What is a conflict? It is a clash of interests, actions, benefits, values, opinions, directions etc among people.

Naturally, people are different, they see things differently, want different things, perceive things differently, differ in status and styles, and have different goals and values..

If the difference is not managed well they lead to disagreements. Unresolved disagreement become disputes, which become conflicts. If conflicts are not managed well they become violence and even war..

THE NATURE OF CONFLICT “Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict ,alternatives to passive or aggressive responses, alternatives to violence.” - Dorothy Thompson.

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LITIGATION It is the use of courts to resolve a dispute It begins with the claimant filling a statement of claim before a court i.e. a court of competent jurisdiction, of law or petition against his opponent. Specific rules of procedures, discovery and presentation of evidence are followed. If parties do not agree to settle the matter, the judge or magistrate hears the case and then makes a decision which becomes binding. A summon is issued to the defendant who is required to enter an appearance within a specified period and submit a filed written statement of defense..

The pleadings must be accompanied by all documents and witness statements that each party intends to use to support his claim. A trial becomes a formal proceeding which allows full examination and determination of all issues between disputants with each side presenting his/her case before a judge or magistrate. In most cases, litigants need the assistance of a lawyer but self representation is available. The judge then makes a decision by applying the facts of each case to the law applicable. The judgment pronounced by the judge may determine the process of litigation unless the aggrieved party goes on appeal to a higher court. In litigation, a party has no choice as to which judge will hear his case. Note that in litigation, the winner takes it all and the losing party pays the winning party in terms of cost..

MAIN FEATURES OF LITIGATION It is involuntary i.e. the defendant is dragged to court hence he has no choice but to participate in the proceedings. Formal and structured rules of evidence are strictly applied. Each disputant is given an opportunity to present his evidence and argument to support his allegation or claim. Each party has a right to ask his opponent questions. This is known as cross examination..

The court is open to the public during the hearing of court proceedings hence there is no privacy. However, there are exceptional cases when the general public is excluded from open court. The decision of the judge is based on the principles of law and once made by the judge; it is final and binding upon the disputants. Depending on the level and jurisdiction of the court the losing party has a right of appeal. The losing party may be ordered to pay the cost of litigation to the winning party. Technical terms are used during the proceedings which may be unfamiliar to people who have no knowledge in law..

ADVANTAGES OF LITIGATION Procedure is formal and structured hence less opportunities for abuse of the court process. Each party is [protected by rules of evidence and procedure which are strictly followed. Parties can be compelled to attend court proceedings. Legal rules are established for future references. These are called judicial procedures. The final decision is binding on the parties which may bring litigation of a matter to finality..

DISADVANTAGES OF LITIGATION It is expensive in terms of filing fee, lawyer’s fees and costs to parties involved. There is no privacy as the court is open to the public and so anybody can follow the proceedings between litigants. The procedure is technical for litigants hence the need to have the assistance of lawyers. Parties have no control of litigation process as this is in the hands of the court..

There is delay as proceedings take a long time due to numerous applications and appeals. Does not result in a win-win situation. Parties become enemies as there is a winner and a loser. Parties have no choice as to who will hear their case. A judge can easily be influenced to make a decision in favor of either party. Court procedures are not flexible as litigation is controlled by statutory provisions and procedural rules. Judges are not experts in all fields like construction industry hence the court is not the best forum for resolution of some disputes..

ALTERNATIVE DISPUTE RESOLUTION (ADR).

“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” - Sandra Day O'Connor.

The 2010 Constitution of Kenya considers ADR as a principle for exercising judicial authority and includes Reconciliation, Mediation, Arbitration and Traditional dispute resolution mechanisms as forms of ADR (Article 159(2) (c)..

OVERVIEW OF ADR Common methods of dispute resolutions include litigation, arbitration, mediation, conciliation and adjudication. Litigation seems to be more common as compared to the other mentioned methods which fall under the term Alternative Dispute Resolution (ADR). The methods are basically an alternate to litigation..

ADR has the following features: Less formal Flexible rules of procedure No strict adherence to the rules of procedure Procedure of ADR is not complicated. Faster and quicker hence there is less delay. It is cost effective.

Encourages parties to participate in the process, so as to arrive at mutual settlement. Confidentiality is maintained In some cases, the parties control the process and own the decision. ADR maintains ongoing relationships between the parties. There is voluntary compliance of the results as compared to court judgement. Experts in particular field may be available to resolve the dispute..

DISADVANTAGES OF ADR No legal procedures are established. No uniformity in decision making hence one cannot predict the likely outcome of a dispute. Parties who have no respect for ADR will always opt for litigation. Sometimes it is not easy to enforce a decision against a party who fails to comply. It is not possible to determine the legal rights of a party under ADR system. It may turn out to be expensive especially mediation and arbitration..

ARBITRATION It is the submission of a disputed matter to an impartial third party for decision making. The third party is known as the arbitrator and his decision is known as an award. It is an out of court method for resolving a dispute. The arbitrator controls the entire process and like a trial, he listens to both sides and then makes a decision. Unlike a trial, there are limited chances of appeal..

Main Features of Arbitration The process may be voluntary or directed by the court. There may also be a clause in the agreement requiring parties to go for arbitration before going to court It is private a confidential unless an appeal is made to court. It is less formal and less structured than litigation depending on the arbitration rules. The process is usually quicker than going to court but not always. It is less expensive in comparison to litigation..

Each party has opportunity to present his evidence and make arguments in favor of his case. Parties have a right to choose an arbitrator with specialized knowledge in relation to the dispute at hand. A decision made by the arbitrator may resolve the dispute and can be final. The award of the arbitrator can be enforced in court. The decision of the arbitrator may be non binding and in that event the party has a right to go for a trial..

ADVANTAGES OF ARBITRATION Parties have the right to choose the arbitrator. Judges do not necessarily have the required expertise Arbitration is generally expected to be faster. There is flexibility in schedule. The parties may have greater control Rules of arbitration can be tailored to fit the nature of the dispute There is less likelihood of bias It can be less costly There are limited chances of appeal Parties can chose the laws of arbitration applicable They can also choose the place of arbitration..

DISADVANTAGES OF ARBITRATION There may be no right of appeal even where the arbitrator has made a mistake The process may not be faster after all Limitations on discovery may occasion a disadvantage to a party Flexibility of the rules of evidence may not be ideal to the facts of the case The arbitrator may be biased.

RECONCILIATION It is a voluntary process whereby a conciliator facilitates negotiations between disputing Parties and assist them in understanding their dispute in order to reach a mutually acceptable settlement..

It involves discussions between the parties and the conciliator with an aim to explore resolutions by looking at the issues involved in the dispute and creating options for settlement that are acceptable to both parties.

MAIN FEATURES OF RECONCILIATION It’s a voluntary process Expenses are limited Its impartial i.e. a decision is not made as to who is right or wrong Process is confidential Options available to the disputants are tabled by the conciliator Process is risk free.

ADVANTAGES OF RECONCILIATION Offers a more flexible alternative to arbitration and litigation Parties are free to withdraw from the proceeding which is not prejudicial to their right to litigation Parties are directly engaged in negotiating their agreement Conciliator can view the dispute more objectively and generate options to a settlement.

Saves money Parties can also save time Confidentiality is maintained throughout the process Creative solutions to special needs of their parties can become part of the settlement Parties to a dispute can chose the conciliator.

Differences between the Most Important Forms of ADR.

Point of difference Litigation Arbitration Mediation Neutrality of the process Judge is decision maker Arbitrator is decision maker Mediator guides Nature of the process It is adversarial It is adversarial It is consensual Decision maker Judge/magistrate Arbitrator Parties to the dispute Legal rules of procedure They apply fully They apply but to a lesser extent They don’t apply Lawyers role Advocacy Advocacy Advisor to a party.