MEDIATION

Question 1

WHAT IS MEDIATION

Answer 1

• Mediation is a method of resolving disputes whereby the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their dispute.
• The neutral third party is called a mediator.
  The mediator must be acceptable to both parties to the dispute and should have no interest in the dispute other than achievement of a peaceful settlement.
• Mediation is a voluntary, non-binding dispute resolution process in which a neutral third party helps the parties to reach a negotiated settlement,However, when the negotiated settlement is reduced into writing and signed by all the parties, it becomes binding.
• The underlying point in the mediation process is that it arises where the parties to a conflict have attempted negotiations, but have reached a deadlock. The mediator’s role in such a process is to assist the parties in the negotiations although they cannot dictate the outcomes of the negotiation process.

Question 2

ADVANTAGES OF MEDIATION

Answer 2

a. The solution is tailor-made to suit each dispute. This results to a win-win situation for each of the disputants
b. It preserves relationships. Since the solution to a dispute has to come from the parties in conflict, the solution has to accommodate both of them. One does not burn the bridge to the other person since their concerns are accommodated in the solution
c. Mediation is cost effective – A mediation session can last for only a few hours and be completed with a workable solution.
d. Mediation is “democratic’ – Anyone, even a lay person (think of your village elder) can be trained to be a mediator in a matter of days.
e. The process is informal
f. It is also confidential
g. Flexible and easily accessible to parties to a dispute

Question 3

DISADVANTAGES OF MEDIATION

Answer 3

a. There is no guarantee that a settlement will be reached
b. Not all matters can be solved by mediation, especially when they involve determination of a legal position
c. Execution of a mediated settlement depends on the goodwill of the parties

Question 4

MAIN APPROACHES TO MEDIATION

Answer 4

1. Facilitative Mediation
2. Evaluative Mediation
3. Transformative Mediation

Question 5

FACILITATIVE MEDIATION

Answer 5

• In this approach, the mediator facilitates communication and negotiations among the parties to seek resolution of issues between the parties.
• Mediation is non-binding and does not, unless otherwise agreed to by the parties, authorize the third-party neutral to evaluate, decide or otherwise offer a judgment on the issues between the parties.
• In facilitative mediation, the mediator structures the mediation process to assist the parties in reaching a mutually agreeable resolution.
• The mediator asks questions; validates and normalizes parties’ points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution.
• In facilitative mediation sessions, the parties are likely to find themselves talking together in a conference room with the mediator sitting between them, occasionally asking questions to move the process along, and assisting each participant in sharing views in a manner that the other party can understand, relate to, and respond to. A facilitative mediator also assists with procedural questions that arise, while re-framing interests and positions in manner that enables each party to understand both their own goals, and the other’s goals, in the context of a negotiated compromise.
• The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case.
• The mediator is in charge of the process, while the parties are in charge of the outcome.
• They want the parties to have the major influence on decisions made, rather than the parties’ attorneys.

Question 6

EVALUATIVE MEDIATION

Answer 6

• A type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions.
• In addition to facilitating negotiations, the mediator may engage in evaluative tasks, such as providing legal information, helping parties and their counsel assess likely outcomes and inquiring into the legal and factual strengths and weaknesses of the problems presented.
• An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues.
• Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness.
• Evaluative mediators meet most often in separate meetings with the parties and their lawyers, practicing “shuttle diplomacy”. They help the parties and lawyers to evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation.
• Somewhat paradoxically, evaluative mediation can help participantsavoid litigationby placing their trust in an agreed-upon authority, whose opinion can serve as a substitute for a judge.
• By their nature, an evaluative mediator is not shy about offering his or her opinion on the outcome of a divorce or custody matter, should the parties turn to litigation.
• This frank opinion sharing allows the parties to get some insight as to how their position may be heard by the court, and whether it is worth pursuing a hard position or adopting a compromise.
• An evaluative mediator is also helpful for providing guidance when participants are unsure how to resolve an issue, or if there are concerns that a judge may not approve an agreement as fair and reasonable.
• It’s not unusual for facilitative mediations that become stuck on a single issue to incorporate evaluative mediation to break the logjam on the issue in question.
• However, mediators and disputants must be cautious about abrupt shifts between facilitative and evaluative mediation styles, where evaluative mediation often includes the mediator expressing favor towards one party’s objective position.
• Before offering evaluative opinions, it is important for each party to understand and agree to the mediator’s role.
• In summary, in evaluative mediation, the mediator has a much greater part to play in determining the outcome of the mediation and the primary focus is to reach a quick deal.

Question 7

TRANSFORMATIVE MEDIATION

Answer 7

• Like facilitative mediation this approach also empowers the parties to come to their own resolution, however parties also structure the mediation process (as well as the outcome) in this approach.
• In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests.
• Transformative mediators try putting both sides on an equal playing field, so they can better understand each other’s positions and interests, and move closer towards a resolution.
• In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.
• Transformative mediation is most effective when one party is reluctant to engage in mediation due to a power disparity,lack of boundaries, or informational imbalance that both parties acknowledge.
• This style is often used in cases where there is a high level of emotional intensity or when the relationship between the parties needs to be preserved.
• Transformative mediation is the most complicated mediation style, as well as the most potentially problematic. By seeking to equalize the power dynamics between the participants, the transformative mediator approaches the line of advocacy for one participant.
• For transformative mediation, it is critical that both parties agree that the relationship dynamics pose a barrier to resolution, and each agree that the transformative approach is appropriate and necessary.
  Transformative mediation is the most complicated mediation style, as well as the most potentially problematic.
  By seeking to equalize the power dynamics between the participants, the transformative mediator approaches the line of advocacy for one participant.
  For transformative mediation, it is critical that both parties agree that the relationship dynamics pose a barrier to resolution, and each agree that the transformative approach is appropriate and necessary.

Question 8

PRINCIPLES OF MEDIATION (7 PRINCIPLES)

Answer 8

a. Voluntariness
b. Confidentiality
c. Impartiality
d. Party authority to settle - self determination
e. Equality of the parties and cooperation
f. Do no harm
g. Honesty

Question 9

PRINCIPLE - VOLUNTARINESS

Answer 9

• Both of parties must agree to take part, and either of the parties can stop the mediation process at any time.
• This engages their own free will and sense of purpose and enables them to drive the process towards agreement rather than to be led to an understanding by a third party.
• If they drive the process they are more committed to the outcome.

Question 10

PRINCIPLE - CONFIDENTIALITY

Answer 10

• The information that clients share with the mediator is kept confidential, with some very limited exceptions.
• Proposals put forward during mediation cannot be referred to in court proceedings.
• If you try mediation but it doesn’t work for you, the court will never be told why mediation wasn’t successful.
• Unless someone shares a criminal intent or act that involves harm to self or other.
• In respect of further proceedings (except with the express permission of both sides), no one is allowed to use or refer to any information shared during mediation
• In order for people to feel safe to explore their fears and anxieties the process must be perceived to be entirely confidential.

Question 11

PRINCIPLE - IMPARTIALITY

Answer 11

• The mediator does not take sides, and is there for both of you. Mediators don’t give advice, although they may give information about the law – such as what orders a court can and cannot make – and they may offer guidance about what things you might need to consider.
• The mediator needs to ensure that they themselves have no bias or conflicts of interest.
• In effect that means the mediator has:
  a.No prior knowledge of the dispute or the parties concerned.
  b.No investment in achieving any specific outcome (including reaching an agreement).
  c.No personal or emotional involvement in the issue.
  d.Mediators must avoid serving in cases where they have a direct personal, professional, or financial interest in the outcome of the dispute.

Question 12

PRINCIPLE - PARTY AUTHORITY TO SETTLE (SELF DETERMINATION)

Answer 12

• The mediator doesn’t make any decisions: the parties will work out what proposals they both agree to take forward.
• Supporting and encouraging the parties in a mediation to make their own decisions (both individually and collectively) about the resolution of the dispute, rather than imposing the ideas of the mediator or others, is fundamental to the process.
• Mediators should also prevent one party from dominating the other parties in the mediation in a manner that prevents them from being able to make their own decisions.

Question 13

PRINCIPLE - EQUALITY OF THE PARTIES AND COOPERATION

Answer 13

• This equality lies also in the fact that neither party has any advantages, either procedural or moral.
• Each party is given an equal right to express their point of view, to put forward an agenda for negotiations, to put forward their proposals for resolving of the dispute.
• Cooperation encompass the willingness of the parties to participate in negotiations honestly and openly, make the necessary efforts to develop options for resolving the dispute, respect the mediator and other participants in mediation, and conscientiously implement the agreements concluded.

Question 14

PRINCIPLE - DO NO HARM

Answer 14

• This principle requires mediators to avoid conducting the process in a manner that harms the participants or worsens the dispute.
• Some people suffer from emotional disturbances that make mediation potentially damaging psychologically; some people come to mediation at a stage when they are not ready to be there.
• Some people are willing and able to participate, but the mediator handles the process in a way that inflames the parties’ antagonism toward each other rather than resolving it.
• We should modify the process (e.g., meet separately with the parties, or meet only with counsel) where necessary, and withdraw from the mediation if it becomes apparent that, even as modified, mediation is inappropriate or harmful.
• There are circumstances in mediation (as in medicine) where the problem may have to get worse before it can get better; venting emotions can be a painful process.
• Before employing this technique, however, the mediator must be confident that s/he has the skill and experience to avoid making matters worse.

Question 15

PRINCIPLE - HONESTY

Answer 15

• For mediators, the duty of honesty means, among other things, full and fair disclosure of (a) their qualifications and prior experience, (b) any fees that the parties will be charged for the mediation, and (c) any other aspect of the mediation which may affect their willingness to participate in the process.
• Honesty also means telling the truth when meeting separately with the parties.
• When mediating separately and confidentially with the parties in a series of private sessions, the mediator is in a unique and privileged position; s/he must not abuse the trust the parties place in her even if s/he believes that bending the truth will further the cause of settlement.

Question 16

MEDIATION PROCESS IN KENYA (9 steps)

Answer 16

i) Preliminary discussions
ii) Initial private meeting (optional)
iii) Joint/Plenary session
iv) Information Sharing
v) Private meeting/ caucus
vi) Negotiations
vii) Agreement
viii) Post-agreement phase
ix) Closure

Question 17

PRELIMINARY DISCUSSIONS

Answer 17

• This is where certain procedural issues need to be addressed. These include selection of a mediator, a retention agreement for the mediator, scheduling, exchange of documents, confidentiality, and who shall attend the mediation, including the parties’ representatives.
• Preliminary discussions may be conducted either in person or by telephone and will need to take into account the mediator’s views and standard practices.

Question 18

INITIAL PRIVATE MEETING ( OPTIONAL)

Answer 18

• The mediator meets with each party, and their lawyers in a private meeting as soon as they arrive at the mediation, it is usually 15 to 20 minutes and the reason to meet is to establish a level of comfort and rapport with the parties.
• The mediator will ask the lawyers and parties to think about and answer these questions:
  a. How can the mediation be made productive and a good use of everyone’s time?
  b. What are some of the obstacles to settlement?
  c. Is there anything the mediator needs to know at the outset of the mediation that is not in a party’s mediation brief?
  d. What can we discuss in a joint session with the other side that will move us closer to settlement, and not further away?

The initial meeting will shape how the mediation will proceed.

Question 19

JOINT/ PLENARY SESSION

Answer 19

• The mediator begins the session with opening remarks. He/she introduces the parties, outlines and explains the mediation process and lays the ground rules
• He/she then requests each side to present opening remarks to express their perspective on the dispute.
• In some instances, it is helpful for the lawyers to deliver formal opening statements about their client’s case so that the other parties can better understand the legal positions that are being advanced.
• A joint session may be counterproductive where extreme hostilities exist between the parties and the mediator may then decide to see each party separately before convening the joint session.
• As a way of management of interruptions during mediation process, it has been suggested that during the mediator’s opening statement, the mediator should insure that the parties understand and agree to the guideline that each party lets the other speak without interruption during the mediation

Question 20

INFORMATION GATHERING

Answer 20

• After each side presents its opening remarks, the mediator and the disputants are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns.
• The mediator asks questions to clarify the issues and gather information about the interests, needs, and concerns of each party.

Question 21

PRIVATE MEETING/ CAUCUS

Answer 21

• If emotions run high during a joint session, the mediator may split the two sides into separate rooms for private meetings, or caucuses
• In caucus, each side meets separately with the mediator to disclose facts, concerns, and interests that they would not ordinarily reveal to the other party for numerous reasons, including tactical advantage.
• The information disclosed by one party to the mediator during caucus is generally confidential.
• It was eveloped to give the disputing parties an opportunity to take some time away from the joint session so they might confer with their advisor and/or the mediator in the effort to clarify the issues, reflect on long-term and short-term goals, review options and proposals, gain new facts, develop new agreement/settlement offers, allow for emotional venting, and confirm decisions.
• One benefit of a caucus is that it promotes openness and candor, in a safe and private setting.

Question 22

NEGOTIATIONS

Answer 22

• It’s now time to begin formulating ideas and proposals that meet each party’s core interests.The mediator can lead the negotiation with all parties in the same room, or he/she can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals.
• It should be emphasized that a mediator’s role at this stage should thus be essentially one of aiding the parties to negotiate and come to agreeable, creative and acceptable solutions that they are happy to live with.
• This is the essence of autonomy and voluntariness in mediation process.
• If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.

Question 23

AGREEMENT

Answer 23

• If the parties reach an agreement, the mediator helps them draft a written agreement that reflects the terms of the settlement.
• The parties sign the agreement, and it becomes legally binding.

Question 24

Post-agreement Phase

Answer 24

• After parties have arrived at an acceptable, enduring outcome or solution the mediator has to come up with a method or strategy for effectuating that outcome, The criteria could, for instance, include assigning roles to the parties and a timeframe within which certain roles are to be carried out.
• And it is at this stage that parties find out if the negotiations were done in good faith and whether the other party will deliver on the promises it made during the negotiation stage.
• This stage also creates a forum for building and mending broken relationships, since mediation is a mechanism geared towards fostering relationships rather than creating tensions.

Question 25

CLOSURE

Answer 25

The mediator concludes the mediation process and provides the parties with a copy of the agreement, if any was reached.

Question 26

ROLE OF ADVOCATE IN MEDIATION

Answer 26

Before mediation, the advocate: - Assisting the parties to make informed decisions about the mediation process before the process commences - Preparing confidential mediation papers for the mediator - Preparing the client for mediation - During the mediation, the lawyer continues to advise the party on the substantive law relevant to the case, helping the party understand what information might be important to share. - The lawyer also helps the party consider the options that might be available during mediation, the potential consequences of each option, and the possible outcomes to anticipate if an agreement is not reached through mediation. - After mediation, the lawyer assists the party in reviewing the terms of any mediated agreement, testing the party's understanding of the terms, and in some cases, preparing formal agreements.

Question 27

MEDIATION SKILLS AND TECHNIQUES

Answer 27

1. Active Listening 2. Communication Skills 3. Questioning Skills 4. Summarizing skills 5. Emotional Intelligence 6. Persuasive Skills

Question 28

ACTIVE LISTENING

Answer 28

- Listen to understand, rather than to give advice. Listen in silence rather than interrupting. Listen with an open mind, rather than with judgment or evaluation. - Active listening helps you focus on what a speaker's saying to best understand their message. - This can help you recall specific details later when analyzing the situation to determine the way forward.

Question 29

COMMUNICATION SKILLS

Answer 29

-Mediators not only need to use strong communication skills to understand a dispute and to connect to parties; they also need to help the parties to engage in a constructive exchange when their own poor communication skills may be at the heart of the conflict.

Question 30

QUESTIONING SKILLS

Answer 30

Effective questioning serves many functions in mediation, such as- gathering information, clarifying or understanding, refocusing a wandering speaker, stimulating thinking, opening up a position, closing in on a decision etc.

Question 31

SUMMARIZING SKILLS

Answer 31

- Summarizing is a mediator’s compass helping to keep everyone on the same track. Summarizing involves reflecting back to a speaker the essence of the communication. In order to summarize, a mediator must focus carefully on the message. - Be concise, choose your words carefully, move beyond words, be neutral and ask if you are correct. - Summarizing skills are used to lay out the key areas of contention and underlying emotions, as well as to assist participants in rephrasing topics in a less emotionally charged language.

Question 32

EMOTIONAL INTELLIGENCE

Answer 32

- A mediator needs to deal with the emotions connected to the parties’ dispute. - Until emotions are given an appropriate place at the table, parties may need to act out or repeat themselves. These barriers to resolution in mediation may melt away once parties feel understood. - When the mediator channels their emotional intelligence skills, they can guide the parties towards a lasting resolution. - Then, they can help each party understand the other’s situation and perspectives. This can create the empathy needed for the parties to agree on a mutually beneficial way forward.

Question 33

PERSUASIVE SKILLS

Answer 33

- Mediators must have strong persuasion skills – the capacity to convey impressions or ideas that change others’ perception of a situation or proposition – as well as the discernment to know when to employ them. - In mediation, persuasion helps bridge the gap between conflicting parties.

Question 34

BOXES TO TICK WHEN SELECTING THE MEDIATOR

Answer 34

a. Mediation is voluntary. b. The mediator must be neutral and impartial c. What factors do you consider when selecting your mediator? There are practical factors to consider: - Training/knowledge - Experience in mediation - Expertise in the subject area - Location - Educational qualifications/experience - Trust - References/reputation - Approach/style to mediation - Fees

Question 35

COURT ANNEXED MEDIATION IN KENYA

Answer 35

- In Kenya, Court Annexed Mediation was introduced in 2015 through legislative and policy reforms to accommodate mediation in the formal court process. - These included amendment to the Civil Procedure Act to provide for reference of cases to mediation. Under the Act, the court may direct that any dispute presented before it be referred to mediation: on the request of the parties concerned; where it deems it appropriate to do so; or where the law so requires. - The Mediation (Pilot Project) Rules 2015, provide that every civil action instituted in court after their commencement shall be subjected to mandatory screening by the Mediation Deputy Registrar and those found suitable may be referred to mediation. - Where a case has been referred to mediation after screening, the mediation Deputy Registrar (MDR) is required to notify the parties of the decision within seven (7) days. - The MDR will then nominate three (3) mediators from the Register of Judiciary’s accredited mediators, and notify the parties of the names - Within seven (7) days of being notified, the parties have to state their preferred mediator from the three names in the order of priority, and inform the MDR of their preference in writing. After this information, he MDR will appoint a mediator to handle the case. - However, it is possible for parties to choose their preferred mediator outside the recommendations of the MDR. - The appointed mediator will schedule a date for initial mediation and notify you of the date, time and place. This is supposed to be done within 7 days of appointment. - The rules further prescribe a time limit of sixty (60) days from the date of referral to mediation within which the proceedings should be concluded. - However, this period may be extended for a further ten (10) days. - If the parties reach an agreement, they will sign a mediation agreement and file it with the MDR within ten (10) days, such an agreement is enforceable as a judgment of the court. - No appeal lies against such an agreement. - It is possible for the selected mediator to decline the appointment. In this case, s/he shall inform the court and the arties, then the court will appoint a different one. - The mediator shall file a report within ten days after the conclusion of the mediation in Form 13 as set out in the Schedule. - If no agreement is reached, the mediator will notify the MDR after which the case will be processed by the court in the usual manner.

Question 36

PRIVATE MEDIATION AGREEMENTS

Answer 36

- In 2022, we enacted New Court Annexed Mediation Rules which provide for Private Mediation Agreements. - Parties can now forward private mediation agreements for registration and enforcement without having to file pleadings as they would have to in the adversarial process. This is done within 30 days of settlement. - In order for a private settlement agreement to be registered by the court, it should- (a) have been reached with the assistance of a qualified mediator; (b) relate to a dispute that is not the subject of a pending court case; (c) relate to a dispute capable of being resolved by mediation under Kenyan or international law; (d) not be illegal; (e) be capable of being enforced by the court under Kenyan or international law; (f) be reduced into writing in the language of the court; (g) be dated and signed by the mediator, each of the parties to the dispute, and the parties’ advocates or representatives, if any; (h) indicate the place of mediation and where the settlement agreement was signed; (i) have resolved all the issues in dispute; and (j) indicate concisely the nature of the dispute, the issues involved, and the settlement agreement thereupon.

Question 37

IF A PARTY IS REPRESENTED BY AN ADVOCATE IN MEDIATION, THAN ADVOCATE SHALL-

Answer 37

(a) ensure that the party respects the notices by the mediator and court; (b) ensure the appearance of the party at each mediation session; (c) explore with the party the available options so as to ensure speedy conclusion of the mediation; (d) adopt an advisory role while the party takes the lead role in mediation sessions; and (e) co-operate, and encourage the party to co-operate, with the mediator and the other party during mediation.

Question 38

MEDIATION AND ETHICS

Answer 38

- Ethics, integrity and best practices are fundamental in mediation. They serve various functions such as guiding the conduct of mediators, informing parties to the mediation process about the standards they should expect during the process and promoting public confidence in mediation as a conflict management process - Accordingly, a mediator must avoid: (i) partiality or prejudice; and (ii) conduct that gives any appearance of partiality or prejudice. - Mediators must avoid serving in cases where they have a direct personal, professional, or financial interest in the outcome of the dispute. - Impartiality in mediation requires a mediator to refrain from exhibiting favoritism or prejudice towards any party or any position taken by a party in mediation - Before a mediation begins, a mediator must disclose all actual and potential conflicts of interest known to the mediator. - The mediator should: (a) discuss any circumstances that may, or may be seen to, affect the mediator’s independence or impartiality; and (b) at all times be transparent about the mediator’s relations with the parties in the mediation process. - Disclosure must also be made if conflicts arise during a mediation. After making disclosure the mediator may proceed with the mediation if all parties agree and the mediator is satisfied that the conflict or perception of conflict will not preclude the proper discharge of the mediator's duties. Otherwise, he should withdraw from the entire process. - Mediators have a duty to know the limits of their ability; to avoid taking on assignments they are not equipped to handle; and to communicate candidly with the parties about their background and experience. - A mediator must not mediate unless the mediator has the necessary competence to do so and to satisfy the reasonable expectations of the parties. - Mediators have an ethical duty to ensure full and fair disclosure of any costs and fees that the parties will incur during the mediation. To this end, the mediator must fully disclose the mediator’s engagement terms and fees to the parties. - In order to uphold integrity and best practice in mediation, a mediator has an ethical duty to terminate the mediation proceedings in cases where a party is abusing the process or where there is no reasonable prospect for a resolution