HAND BOOK ON Federation of Women Lawyers - FIDA KenyHAND BOOK ON MEDIATION Federation of Women Lawyers - FIDA KenyaaC) gi Aknowledgement FIDA Kenya's Access to Justi oe beoairania tes don training i ng women and erati ticularly Nao Maria Goretti Ny Wagereka, iki, Dorcas on mediation in a simple and reader manner for FIDA Kenya elie strategic partners. organization. We sincerely appreciate the teamwork of all FIDA Kenya staff members, We extend our sincere and utmost gratitude ju Kairu e Onsare for editing wrot he invalua tand form. wally thank Noel Creative Media Limited for their input, layout and publication of this Handbook, incerelythank FIDA Kenya staff partioul ueline Ingutia, Jane ith Okal and all other FI Staff in all the three endless efforts to ensure the re and publication of this Handbook, eee eeeFIDA Kenya is a non-profit, non-governmental membership organization providing legal aid and education amongst other services geared towards the enhancement of the legal status of women in Kenya. With a view to enhancing family unity and mutual respect FIDA Kenya initiated and runs a mediation program under which FIDA Kenya seeks to avail its clients of an opportunity to amicably resolve disputes through mediation, The aim in developing this handbook is to make available to FIDA Kenya's mediators, members, clients and staff simplified information to help in gaining a better appreciation of alternative dispute resolution with particular emphasis on mediation. This handbook is divided into five parts for easy reference. It explores different forms of ADR, the mediation process, disputes Suitable for mediation and benefits of mediation. Further the handbook also highlights the challenges one is likely to encounter in mediation, the different perceptions and misconceptions of mediation. MEDIATIONB. Introduction Alternative Dispute Resolution commonly known as ADR refers to @ range or variety of procedures for resolving disputes instead of resolution through the court process, The court system certainly plays an important and critical role in dispute resolution in Kenya and the world over. It however has challenges that encourage parties to seek alternative ways of resolving their disputes. There are several challenges people face when seeking to resalve disputes through court systems, They include: Courts havea heavy case Load relative to the resources available to the courts resulting in a backlog of cases, Cases take too long before they can be heard, Most of the hearings are generally conducted in public and therefore there is no confidentiality or privacy in courts, Courts are not flexible enough due to their technical rules and procedures, The courts are located in district or divisional headquarters and are physically far away and inaccessible to many people who may want to access them, The parties surrender the control ofthe process to the Judge or Magistrate and itis rare that relationships between parties are mended. For these and other reasons there is need and justification for seeking alternative ways of resolving disputes. MEDLATIONThe alternative process may involve: 1. The parties discussing or communicating or negotiating directly amongst themselves or through their representatives; 2. Theintervention and assistance ofan independent and impartial third party who facilitates the negotiation. 3. Or also take the form of a private judicial process in which the parties employ an independent and impartial third party who after receiving evidence and arguments from the parties or their representatives makes a binding decision for the parties. 4. Ortake other forms as well including assistance from traditional or customary and religious institutions. The expression “Alternative” could be misleading to the extent that it might suggest procedures for resolving disputes in place of the court process. ADR encompasses a range of procedures from which parties having a dispute can choose it in addition to court process. Indeed it has been suggested that word “Alternative” should be replaced with the word “Appropriate” to the extent that parties in dispute can choose the most appropriate method or procedure for resolving their particular dispute. Different processes may best be EA suited for different kinds of disputes. ge"| Forms of Alternative Dispute Resolution a. Negotiation Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. Negotiation is perhaps one of the most common forms of dispute resolution. People negotiate all the time. Whether it is parents discussing which school the children should attend, or how to discipline their children, or estranged partners discussing financial arrangements after a divorce they are consciously or unconsciously engaged in negotiation. Negotiation is communication for purposes of persuasion. It is communication between two or more people for the purpose of arriving at a mutually agreeable solution. There are skills that can be learnt to enhance negotiation. b. Mediation Mediation is a process where an independent and impartial third party facilitates the negotiation process between the disputing parties. The third party, the mediator, is not a decision maker like a judge or a magistrate. Decisions are made by the parties themselves with facilitation from the mediator. Mediators need to have been specifically trained in conducting mediation, c, Arbitration This is a process of dispute resolution involving one or more independent and impartial third party (ies) who is identified and agreed upon by the disputing parties makes a decision, which is based on the merits of the case. The decision is legal and binding on the parties like a judgment of a court of law. The decision is called an AWARD. This process is similar to the court process to the extent that the arbitrator or panel of arbitrators, like a judge or magistrate, makes a binding decision for the parties after receiving evidence and arguments from the parties or their representatives. Arbitration can however be adopted to suit the specific needs ae. Informal or Community Based Dispute Resolution Mechanism and circumstances of the parties and is usually quicker and more efficient than the court process. Arbitrators are also specifically trained in the conduct of arbitration sessions. Many disputes in Kenya never reach the courts and are resolved through Informal Justice Systems dispute resolution processes. This may be at the level of immediate extended family or clan level. It may also be at a higher level of social organization for example through councils of elders and religious leaders, Mini-trial In some judicial systems or countries, there is room for disputants to voluntarily participate in a process where the disputants or their lawyers present brief arguments to.a judge who will not preside over the case if it goes to trial. The judge hears the summaries and meets with the disputants and ‘their lawyers and together they attempt to resolve the dispute. Pre-trial conference Advocates present an overview of their respective cases to a pre- trial judge who provides a non binding opinion as to how the case would likely be resolved at trial, Expert Determination Expert Determination is a process where parties to a dispute refer a specific aspect of a dispute to an expert who, through his or her skill or knowledge in the particular subject, gives an opinion on the basis of which the dispute is determined. Early Neutral Evaluation This is a process where parties to a dispute retain a respected third party neutral to provide them with an early neutral evaluation. The disputants/their advocates present their cases to the evaluator who then provides an opinion about the likely outcome of the case were it to proceed to arbitration or trial.i. Adjudication Adjudication is common in the construction industry. It is a procedure by which any party to a construction contract has a right to have a dispute decided by an adjudicator. It is intended to be quicker and more cost effective than arbitration or litigation. Although most types of disputes can be adjudicated, it is normally used to ensure payment. The adjudicator must generally decide the dispute in less than 28 days or such period as may be agreed. The adjudicator’s decision is binding on the parties until the dispute is finally decided by arbitration, litigation or any other agreed process. j. Arbitration/Mediation Hybrid Disputants present their cases to a third party neutral who acting as an arbitrator prepares a decision. The arbitrator then becomes a mediator and attempts to facilitate resolution. If resolution is reached during mediation the decision prepared by the third party neutral is destroyed. If disputants are not able to reach resolution during mediation, the decision of the third party neutral is released tothe parties and they are bound by it. k. Mediation/ Arbitration This is @ hybrid process where the third party neutral begins the process in the role of mediator. If mediation does not result in resolution the mediation ceases and mediator becomes an arbitrator who then renders a binding decision. This process is the reversal of the Arbitration/Mediation Hybrid. The Mediation Process a. The Nature of Mediation 4s indicated earlier mediation is a process in which an independent or neutral third party without the power to decide or to impose a solution helps the parties to resolve a dispute. Atits most basic level, itis facilitated communication. MEDIATIONIt is a confidential, voluntary, party controlled, mon adversarial process. The mediator provides the foundation for a bridge between the parties. The mediator must be the quardian of the mediation process. Hef she must maintain confidentiality. All communication made to the mediator during the process must be held in the highest level of confidence. The privacy of the process is one of the features of mediation which allows it to be a useful dispute resolution tool. The parties must be able to provide sensitive information freely. In instances where the mediator holds private sessions with each of the parties, referred to as caucusing, he should disclose that each party's session is confidential. Atthe end of the private session, he can then ask which information he can share with the other party. The mediator should make sure that the process is voluntary. The mediator is supposed to inform the parties that irrespective of the influencing factors, once mediation begins, each participant has the right and the power to end the process if he/she does not feel as ifthe process should proceed. Mediation is dynamic and the process may vary from case to case, The mediator should: i. Be aware of cultural differences/ practices; Have a clear concept of the dispute; iii. Create and exploit opportunities to transform the disputants’ relationships; iv, Bein full control of the process; v. Build consensus through recognition of parties’ interests and concerns; 3s Ferry vi Clearly explain the process to the disputants; vii, Practice active listening skills to uncover the interests of each party.b. Stages in mediation The mediation process may be structured in different ways to suit the particular circumstances and needs of the parties. The model suggested here is only one of many possible models, The process can be structured in away that incorporates the following components or stages: Stage one: Introduction and the Mediators’ opening statement which is sometimes referred to as setting the table. » The objective of this stage is to establish and maintain a structure for the mediation, a positive and open atmosphere for resolution seeking, trust and confidence, establish communication channels and establish rapport; The mediator will begin the process with introductions; he or she will familiarize the parties with the process, set the atmosphere for the process and create a positive resolution- seeking attitude among the parties; He or she will establish and maintain trust and confidence in the process, establish rapport between the parties, negotiate and establish ground rules e.g. that everyone will have an opportunity to speak and should be accorded opportunity to do so without interruption, discuss conduct, civility and respect; Whether caucuses will be held and the rules of caucusing; Whether mediator will be at liberty to make suggestions BUT NOT decisions; Establish parameters of confidentiality; Mediator can terminate process; Each party can terminate process at any time. Stage two: Narration or presentation by the parties also sometimes referred to as story telling. Each party has an opportunity to provide his or her perspective of the dispute or present their version of the facts preferably without interruption, MEDIATIONThis does not only give the parties opportunity to vent or let out their frustrations and express their anger and emotions but it also helps the parties to understand each others’ perspective of the facts, interests and issues. It also helps the mediator understand the parties interests and issues and to identify obstacles to resolution. Ttalso provides an opportunity for the parties to hear, directly from the other party, that other party's perspective. The mediator needs to be an active listener and may ask questions and may seek clarification, Stage three: Determining Interests Once the parties have told their stories the mediator will clarify and confirm the interests of the disputants by summarizing for each disputant his or her understanding of the disputants perspective, He or she checks with each disputant to ensure accuracy of mediator’s understanding ofthe disputants’ interests and mayencourage parties to speak directly to one another and to ask and answer questions, clarify misunderstandings and offer acknowledgement, Stage four: Setting Out the Issues Having obtained clarification the mediator will then facilitate the disputants to develop a list of issues with the object of helping them focus on the specific matters oritems which must be resolved. The objective should be to ensure that allissues which must be resolved in order to resolve the dispute are identified. The Mediator should ensure that the list is complete and frame the issues in a way that promotes problem solving i.e. frame issues in a positive way and using neutral language and in a way that invites option generation, Stage five: Brainstorming Options Having generated a list of issues the mediator ; encourages the parties to generate options, The mediator should aspire to get the disputants to MEDIATIONexpress options with which they are familiar. The mediator should also encourage the parties to be as creative as possible. At this point the advantages and disadvantages of each option should not be explored or discussed. The mediator should thus encourage the disputants to suspend criticism but seek to establish whetherthere were past settlement offers and focus the disputants’ | attention to the problem rather than on each other. / It is debatable whether the mediator should suggest options, as there may be concerns of bias. Stage six: Selecting Durable Options Once all the options arein the basket the mediator willthen facilitate negotiation between the parties. He or she will help the parties explore the options against their respective Best Alternatives to a Negotiated Agreement (BATNA), The Mediator will help the parties pick realistic options for resolution for instance by encouraging parties to use objective criteria to choose from among the options. Caucus may be a useful technique for this purpose. Final stage: Closure The mediation will hopefully result in agreement, The mediator assists the parties to make the transition from a preferred settlement option to a settlement agreement. He or she should ensure that the settlement deals with all the issues. If there is no agreement, the mediator should acknowledge progress made and explore prospects for use of mediation process in future. Disputes commonly referred to Mediation Mediation can be used in practically all types of disputes, Mediation is particularly appropriate in disputes where: a. The parties want to control the outcome of the dispute; b. Personal or emotional barriers prevent settlement; MEDIATION¢, Resolution of the dispute is more important to the parties than vindicating legal or moral principles; d. The parties have an ongoing relationship; e. Parties are concerned about resolving the dispute in an expeditious and cost effective way: f. The disputes involve disagreements about the facts or interpretation of the facts. Examples of disputes that might be referred to mediation include relationship disputes, family disputes, child custody disputes, environmental disputes, land disputes, market competition disputes, disputes with neighbours et al. Mediation may not be appropriate in disputes where there is substantial resistance to settlement by both parties, where there is a significant mistrust grounded on past unfair dealings between parties or where one of the goals is to ensure that there is public sanction against the parties. Benefits of mediation as a dispute resolution mechanism + Perhaps the single most important and significant benefit of the mediation process is party autonomy, control and power; » The parties themselves resolve their own disputes without imposition of solutions from a third party; > Parties are also able to focus on and maximize on satisfying their respective needs and interests; » Mediation is conducted in private, It is therefore a confidential process. > Parties usually choose the mediator. » The process educates the disputants. > Italso reflects the concerns and priorities of the disputants. MEDIATIONBe Co MEDIATION Itis a flexible process that often results in creative solutions. Participation in mediation may lead to a higher rate of compliance. It is also relatively inexpensive, Mediation results in mending of relationships. Mediation is a voluntary process and parties can opt outofthe process atany stage. Challenges one might encounter with the mediation process mmon challenges to effective mediation include; Lack of trust among participants and poor communication. Parties in conflictoften misunderstand each other's intentions and messages and make negative assumptions about the other side, During caucus one party may feel prejudiced by the fact that the mediator is probably spending more time with the other party thus creating a hindrance towards fast and amicable resolution of disputes. This challenge can however be overcome if caucusing is discussed at the very onset of the process when negotiating ground rules and the rules of engagement agreed upon from the start. . Parties believe that they have an alternative or option that is better than what they will get through participating in mediation Tn the course of the mediation process, the parties might vet a different definition of the problem. Essentially parties enter into mediation with their own interpretation of the problem. What issues are in dispute, why the problem has arisen, andhow best to resolveit. When this happens, the mediator should get the parties to explain their view of the problem so that each side sees how the other is framing the conflict. The mediator should then help the disputants to redefine the way they think about the dispute and work toward a common definition of the problem However the Mediator needs to note that should issues arise during the mediation that may need the parties to attend counseling sessions then the mediator could, with their permission, refer them to a counselor they are comfortable It is important that all the challenges listed can be addressed and are not necessary fatal to the Mediation pracess, G Some perceptions of Mediation as a dispute resolution method There is perhaps a perception, especially from people with some experience in the court process, that mediation is an ineffective process on account of its relative informality; There is also a perception, certainly a misplaced perception, that mediation takes food away from the table for lawyers. when in factis should translate into more food for lawyers; There is a perception, probably a misconception that mediation means giving up anes legal rights, There is also a misperception that mediation and settling disputes amicably is a sign of weakness; There is also a perception that any dispute resolution 1 process, including mediation, should be a fact finding or evidence gathering process that should result in a binding enforceable decision or a judgment.clusio Alternative Dispute Resolution and mediation in particular should be fostered and encouraged because it is: a. b. Faster than the court process; Less confrontational or adversarial; Encourages creativity in searching for solutions; Results in improved communication between parties; Results in more durable solutions; Is less costly; Is flexible; Is less formal; Is party controlled/driven; Is confidential; Is satisfying to the parties. For the benefits of mediation to be fully realized the mediator must ably discharge his many roles in the process, namely, the role of being a convener, an educator, reality tester, a quardian of the process and an independent and impartial intervener. MEDIATIONCEUs enh ae Ambeseli Road, Off Gitanga Road Beer Oe Poetic ret once ecg ca| CL a ae Cc Ge nee Kenya (FIDA K), Soa ae REO ed re) Ce Cid CU ee ere) Tel: 041-2224500/041-2313611 errr ae re era) ech eke ie aoc Pett Gee Reem ce) rar Cy moc my Aa rec ac et e ery aCe Cet ma ea rac eb roe eee Cee aT Cue Se Lae) SoEEEEEEEEEEEEEEEEmeEnenEee ee EEE Me Ee eee ae)