Mediation is steadily picking pace and is gradually becoming the conflict management and dispute resolution method of choice. However, the majority of Kenyans are yet to appreciate the nature and form of this alternative dispute resolution mechanism. It is not uncommon to hear people likening mediation to negotiation and arbitration to mediation. But that is a subject for another day. In today’s article, we aim to identify the types of disputes and the factual situations in which mediation is appropriate or inappropriate.
What Types of Cases are Suitable for Mediation?
In principle, all disputes of a civil nature (as between individuals, such as disputes arising from contracts, i.e., commercial transactions, banking, insurance, etc., family disputes involving inheritance, separation and maintenance, or other personal relationships are suitable for mediation. It helps, though, in the face of conflict or dispute, to consult a professional mediation practitioner to guide you as to the appropriateness of mediation in any particular case. With regard to court-mandated mediation under the current Rules administered by the Mediation Accreditation Committee, it is presumed that all family and commercial disputes are appropriate for mediation. Having said that, it is left to the discretion of the Mediation Deputy Registrar in both High Court Divisions to assess and determine the suitability of mediation in each case referred to the mediation panelists of which Dr. Laibuta is a member.
To answer the question, “All civil cases shall be considered appropriate for mediation in the discretion of the court giving consideration to such facts as the subject matter of the case, the amount in controversy, the complexity of the case, the number of parties, the interest of the parties in pursuing mediation, the availability of mediation, and the likelihood of settlement by mediation”.
This answer raises yet another question.
When is Mediation inappropriate?
Not every dispute is suitable for mediation. The list below gives us an idea of what types of disputes, and in what kind of situations, mediation would not be appropriate. These are disputes:
(a) where there are broad matters of policy at stake affecting many people, or the whole society, such as constitutional, national security, public policy issues or human rights, or where parties wish to establish an authoritative precedent to guide the determination of future disputes of a similar nature;
(b) where the dispute involves a purely legal question, such as the interpretation of a statute or contract;
(c) where the parties have ulterior motives for using mediation, for example with the intent to cause a delay beyond a limitation period so as to defeat the claim;
(d) where the use of mediation poses the risk of personal danger for one or more parties, or where the dispute revolves around issues of child abuse or family violence, or other criminal conduct not suitable for reconciliation under the Criminal Procedure Code;
(e) where the dispute cannot be resolved without making complicated findings of fact or credibility, for instance, where a party’s liability for damages depends on determining the accuracy of conflicting versions of an accident;
(f) where one or more of the parties is in a disturbed emotional or psychological states, such as denial, anger or severe depression, which requires professional intervention before attempting mediation;
(g) where the dispute involves an uncompromising difference over matters of value or fundamental principal which are not susceptible to negotiation;()(h) where there is need for a remedy which only a court should provide, for example, an injunction or protective order, or where something has to be achieved with great urgency, or where default or summary judgement is appropriate;
(i) where having regard to the complexity of the dispute or the pecuniary value in issue, mediation is too costly;
(j) where there is a relational distance between the parties;
(k) where direct negotiation is likely to produce a result without the engagement of a mediator or other third-party neutral;
(l) where inequality or a serious imbalance of power might serve to reproduce that inequality in mediation;
(m) where the need for an emergency relief by means of a court order makes the referral to mediation inappropriate;
(n) where the issue to be considered has been previously mediated;
(o) where the issues have been referred to a private provider for mediation services;
(p) where the dispute involves an appeal from a ruling of an administrative agency;
(q) where the dispute involves forfeiture of seized property;
(r) where the dispute involves enforcement of a foreign judgment; or
(s) where the dispute involves the application for an administrative law remedy.
What to do when in Doubt
When in doubt, the default view is that all civil disputes are suitable for mediation. The next step to take is to consult an ADR practitioner for advice. If the dispute is already in court, the Mediation Deputy Registrar will figure out the suitability of mediation and refer the matter to an accredited mediator. In any event, you are at liberty to contact Premier ADR Consultants for guidance at no cost to help you manage your conflicts and resolve your family and commercial disputes in an efficient and effective manner, saving you the agony of costly and emotionally-draining court litigation, which only serves to erode your family and business relationships. If you wish to obtain our regular informative material, kindly subscribe to our monthly newsletter or email Dr. Laibuta, who will be more than willing to advise you.
Premier ADR Consultants is a firm of law attorneys, legislative counsel, chartered arbitrators and mediators.
We resolve the following types of disputes:
- Commercial disputes
- Workplace disputes
- Marital disputes
- Inheritance and succession claims
You can learn more by visiting our website at www.adrconsultants.law and like our Facebook page for our weekly posts and monthly newsletter.
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