The tea or preferred beverage is served. The aggrieved begins and after his statement the accused is given a chance to give his opinion on the matter. The third party guides the speculations of each party and finally, a decision is made. A win- win situation is arrived at. All this could happen in a mere sitting. This is Mediation.
Kenya has just initiated its Mediation Pilot Project. This being pursuant to Article 159 of the Constitution which provides for the use of Alternative Dispute Resolution Mechanisms.
So what does this Pilot Programme entail?
A Mediation Accreditation Committee (MAC) shall be set up to first and foremost determine and implement the criteria for the certification of mediators. They will also give a layout of a code of ethics by which the mediators shall abide by. As of now, this vital process of appointment has already taken place. The process will operate such that disputes which lie in the forte of the Commercial and Family Division will automatically be referred to Mediation. If an event occurs whereby the matter is unsolved by the use of Mediation, then one may seek the Courts for ratification.
What are the advantages?
Timeliness. Timeliness. Timeliness. It seems to be the most outstanding feature of the entire initiative. Currently in our Kenyan Courts, a case can be in deliberation for so long to the point where any order given by the court becomes irrelevant. The Mediation Rules put a strict caveat that matters must be settled within a time frame of 60 days.
Privacy and confidentiality seems to be another plus because by its very nature, mediation provides for a low-key approach in dealing with cases. This might come in handy when dealing with family disputes. It also safeguards the autonomy of the parties.
Additionally, this entire process of Mediation is party-centered. Parties are therefore more willing to implement any agreement as they have actively taken part in its construction.
What are the disadvantages?
A lot of criticisms have come up, and the first solely deals with the nature of the programme. This is because the process is mandatory. Some people feel that mediation at its very core is voluntary. The move to make it a mandatory process seems to be going against its main principles.
A second problem is to the formality of the process. The Rules provide for Mediation only on a formal basis. This disregards the Traditional and Cultural mediation techniques of the people receiving the services. It does not address the cultural diversity of the people. It is with this that critics have posed that the informal Mediation techniques also need to be involved such as was done in Rwanda with the Gacaca Courts.
Conclusion
It is clear that we do require a means to screw the hinges to our underdeveloped judicial system. This could prove to be the first big step in that direction.
