Introduction

The question as to what mediation (sometimes referred to as conciliation) is is one of the most frequently asked questions. I must confess that I stand to be counted among the large number of professional mediators who erroneously assume that the meaning of the term, and the process of, mediation is common knowledge. I am ashamed to learn that that is not the case. It is equally erroneous to assume that our prospective clients know the process and benefits of mediation compared to court proceedings with which most are familiar.

Users of mediation as an alternative to filing claims in court need to be familiar with the nature and process of mediation. This would enable them to make informed choices as to their preferred method of dispute resolution. They have the right to know the benefits of one method of dispute resolution over the other. Their informed choice as to the preferred dispute resolution mechanism has a bearing on the integrity or endurance of their inter-personal or business relationships.

What Mediation Is

The process of mediation may be described as an informal, albeit structured, procedure in which the parties discuss their disputes with the aim of reaching a negotiated settlement with the assistance of a trained impartial third person known as a mediator, who assists them in reaching a settlement. It is a form of alternative dispute resolution (ADR), a collaborative way of resolving disputes between two or more parties with mutually beneficial and satisfying outcomes.

Mediation is a process of assisted negotiation. It is a constructive conversation between people in conflict facilitated by a neutral third person, the Mediator. It provides the participants an opportunity to collaboratively design creative solutions to their conflict or dispute and repair their relationships.

The Process

Mediation is a voluntary party-controlled process. It is founded on the principle of self-determination whereby the parties voluntarily make their own non-coerced decisions regarding the possible resolution of the issues in dispute free from undue influence by the mediator.

The process of mediation is collaborative and transformative. It is safe, respectful and voluntary. It is consultative and confidential in the sense that the communications exchanged in the process of negotiation cannot be admitted in evidence in subsequent court proceedings. Neither can the mediator be called to testify on evidential matters disclosed during the mediation sessions.

What Disputes Are Suitable for Mediation?

Almost all disputes arising from interpersonal and business relationships are fit for mediation. Examples are marital disputes, succession/inheritance claims, workplace conflicts, commercial disputes (including insurance claims, banking and other contractual claims), insolvency claims, and any claim or dispute arising from a contract.

Advantages of Mediation

Among other advantages, mediation is purely voluntary, private, informal and free of technical procedures, inexpensive, swift (i.e., takes a very short time to conclude), the parties are in control, and the process leads to a mutually agreed determination on terms that accommodate the needs and interests of all parties.

Consider this example. a marital or other family dispute takes between three to six hours to resolve while court proceedings would take years to conclude. What might cost hundreds of thousands, or even millions, of shillings in legal fees paid to lawyers in a court case would cost as little as KShs.50,000 in mediation. In mediation, the parties determine the terms on which they settle their dispute while litigation leads to a determination by a stranger to the relationship. In mediation, the parties decide what is good for them while court cases are decided on the basis of law without taking account of the parties best interests. Premier ADR Consultants subscribe to the immutable principle that “No Conflict or Dispute is Intractable”.