Mediation Practice and Procedure – The Role of Legal Counsel
Mediation is assisted negotiation. It is a consensual process whereby parties in dispute appoint a third-party neutral (who has no interest or stake in the subject matter of the dispute) to facilitate resolution of their dispute on mutually agreed terms. Mediation, which is also commonly referred to as conciliation, is a dynamic, structured, interactive process in which a neutral third party assists disputing parties in resolving a dispute through the use of specialized communication and negotiation techniques. The process is voluntary, confidential, and the mediator/conciliator does not render a decision but helps the disputants to generate a mutually acceptable outcome.
The Role of Legal Counsel in Mediation
Professional mediators and accredited alternative dispute resolution (ADR) practitioners often make the mistake of assuming that the word “mediation” is understandable by consumers of ADR. Yet it is not. Neither do a majority of prospective clients appreciate what mediation entails. What mediation is features as one of the most frequently asked questions that I am …
Confidentiality – A Fundamental Feature of ADR
My appearance in court soon after admission many many years ago was punctuated by a mixture of disbelief, utter shock and amusement, not to mention the barrage of questions that ran through my mind as to how long I would be part of the occasional comedy that saw couples wash and air their dirty linen …
Enlarging the Scope of ADR In the Criminal Justice System
The maintenance of social order and the existence of communal life depend on the extent to which we are able to effectively satisfy our competing needs and interests. Our capacity to manage conflicting needs and interests is dictated by our dispute resolution strategies, some of which have yielded fruit while others have been less effective. …
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The Ideal Mechanism for Dispute Resolution
The primary goal of an ideal civil and criminal justice system is the effective management of conflicts and just resolution of disputes through a fair but swift process at a reasonable expense in time and money. It recognizes the fact that delay and excessive expense invariably negates the value of an otherwise just resolution. Similarly, …
Unlocking the Potential for Appropriate Dispute Resolution
Even though greater emphasis is often laid on market mechanisms in civil claims founded on contract and other private legal relationships, traditional societies in Africa make little or no distinction between civil and criminal liability except in their restorative and retributive approach to claim adjudication. More emphasis is laid on restoring the parties and their …
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Conflict Prevention In Marriage
Marriage may be likened to an adventurous journey without a destination in view. Those walking this path learn to live through intermittent moments of joy and gloom. With time, they come face to face with the reality that a happy marriage does not just happen. It results from concerted effort and determination to build an …
Mediation In Development
Presented at the mediation conference at Strathmore University, Nairobi, Kenya on the 25th-27th July, 2018 Conflicts are an integral part of human relations. Their effective management and the resolution of ensuing disputes become critical to the maintenance of social order and the very existence of communal life. It is no wonder that conflict management …
When he took off her shoes
My first engagement as a legal practitioner in the Kenyan judicial system came with a cocktail of feelings of disappointment, horror and amusement. I served as the legal officer of a legal aid project that offered legal aid services to indigent disputants in criminal law, marital and succession disputes. Despite legal aid, the struggle our clients went through in the judicial system left a lasting impression in my mind. They ranged from those who couldn’t raise the minimal court filing fees to those who couldn’t raise fare to return to their homes or transport their witnesses to and from court. It was not uncommon for my colleagues and I to give handouts to facilitate their return home. But there was a limit as to what we could do.
Why Arbitrate?
Arbitration is contractual. Parties agree (in writing) to submit their present or future disputes to an arbitral tribunal (of one or more arbitrators). They agree on the procedure for appointment. Unlike court litigation the parties are free to design the arbitral process to accommodate their respective needs and interests. In recent decades, arbitration has become the preferable procedure for the determination of commercial disputes. Its advantages outweigh court litigation. Yet few are aware of this private, yet legally binding, process whose benefits are unmatched by the conventional judicial process.
How Mediation Works
Professional mediators and accredited alternative dispute resolution (ADR) practitioners often make the mistake of assuming that the word “mediation” is understandable by consumers of ADR. Yet it is not. Neither do a majority of prospective clients appreciate what mediation entails. What mediation is features as one of the most frequently asked questions I am called to answer in and outside training events and public speaking engagements.
Mediation is a consensual process whereby parties in dispute appoint a third party neutral (who has no interest or stake in the subject matter of the dispute) to facilitate resolution of their dispute on mutually agreed terms. Mediation, which is also commonly referred to as conciliation, is a dynamic, structured, interactive process in which a neutral third party assists disputing parties in resolving a dispute through the use of specialized communication and negotiation techniques. The process is voluntary, confidential, and the mediator/conciliator does not render a decision, but helps the disputants to generate a mutually acceptable outcome.
The Ideal Strategy for Dispute Resolution
Alternative dispute resolution mechanisms trace back to the very origin of mankind. Today, the spectrum of dispute resolution mechanisms in Africa is shaped by multiple legal orders, which include (a) informal community-based justice systems; (b) traditional dispute resolution mechanisms; (c) commercial arbitration and ADR (either backed by statute or founded on contractual relations); and (d) the conventional judicial system. It is believed that only a small fraction of disputes escalate and find their way into conventional judicial institutions while most are resolved through a diverse range of ADR mechanisms, which play a critical role in peace-building and maintenance of wholesome family and business relations.
ADR in Statutory Crimes and Crimes Against the State
Article 159(2) (c) of the Constitution provides firm foundation for ADR by mandating courts and national tribunals to promote “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism”, the Constitution contemplates submission to such ADR mechanisms in the context of judicial proceedings in exercise of judicial authority vested in the Judiciary. However, in their bid to promote ADR, courts are required by sub-article (3) to guarantee the protection of fundamental human rights and freedoms guaranteed under the Constitution.
The question as to the suitability of ADR in statutory crimes and crimes against the State is largely dependent on our societal values that shape our conception of justice. The extent to which our society is prepared to apply ADR mechanisms in criminal law is dictated by our conventional approach to sanctions in criminal law, which is in turn informed by our conceptions of justice – the choices we make as between redressive, restorative, distributive, preventive, corrective and retributive justice.