Alternative Dispute Resolution
MEDIATION DURING COVID -19 PANDEMIC BY CHRISTINE KIPSANG
“Do You Realize That We Will Judge the Angels? So, You Should Surely Be Able to Resolve Ordinary Disputes in This Life”.1
Currently, with the Corona-virus taking precedent all over our businesses, professional and personal life, lawyers are facing high levels of stress in their roles. This is taking a toll on the quality of human relationships with all the change management this health crisis has brought to us. While we have downscaled from office work and now have more time at home perhaps we should spend some of that time resolving long-standing issues conflict. Mediation is one option available during this time.
Mediation is a method of solving disputes. You can access justice through mediation at minimal costs. Alternatively, people opt to use litigation, which is a method of solving disputes through the established court system.
Overall, it is important to note, disputes weigh you down and unless resolved can remain costly in one’s life. Mediation has political and legal perspectives. The Political perspective involves the autonomy in the choice of the mediator and there is a resolution. The legal perspective is a settlement mechanism that is much linked to the Court system (Court -Annexed mediation).
Processes of Mediation – Mediation has both a legal process and political process[i].
|Attributes||Political process||Legal process|
|Focus on interests and not rights||Yes||No|
|Allows for creative solutions||Yes||No|
|Allows personal empowerment||Yes||No|
|Enhances Party Control||Yes||No|
|Addresses root cause of conflicts||Yes||No|
|Leads to a zero-sum situation||No||Yes|
|Outcome is enduring||Yes||No|
[i] Figure 10 in Dr Muigua book on Resolving Conflicts through mediation in Kenya pg 39.
The Current Situation of Covid -19 Pandemic.
With the current situation that is affecting the nations all over the earth, we are bound to apply mediation to resolve pending disputes as the judicial system has descaled its operations to hear only urgent matters and to some extent deal with video link transmissions for ready rulings and judgements. Mediation will offer you a good way of resolving the dispute in a relaxed forum and with technology such as Microsoft Teams or Zoom a matter can be settled within a few sessions with a good mediator.
The process involves the following steps:
- Preliminary/pre-negotiation stage
- Negotiation stage/Actual Negotiations/Across the table negotiations.
- Post-Negotiation/Implementation Stage
The way forward
Cases around the country are increasing dramatically daily. This is now our reality in early 2020. By opting to stay home as a matter of self-preservation, mediators must be prepared to deal with this reality as they may no longer be able to traverse the country as freely as before as a matter of national legal restriction.
That said, the corona virus will not stop disputes from arising and may give rise to more disputes.
For instance, Force majeure clauses are alive and well in commercial contracts, though perhaps not expressly crafted for viruses. When such disputes arise, the only way to mitigate such would be through a deviation of what has been the “usual norm” in terms of legal practice. These adaptations can only be achieved by embracing the use of technology.
Maximizing Technology to Keep Business Moving
As mediators, and as counsel, we must ensure that we have sufficient home office technology to permit us to work remotely, such as high-speed internet and access to cloud storage, robust data security, a quiet area, a reliable telephone line, and a quality speakerphone.
Video Conferencing and Teleconferencing
Mediation Pilot Project Rules, 2015, do not generally describe in any detail what constitutes a hearing. This allows tremendous flexibility for the mediator and the parties to agree on hearing formats that might not meet the traditional model of mediation
Institutions, and lawyers, must review their videoconferencing capabilities. A robust system that allows for multiple split screens; the appearances of counsel, mediators’ witnesses, and parties simultaneously around the country; and the easy exchange of information are the basic requirements. Mediation by telephone, using virtual conference rooms that can be made private with one party or shared with all parties and their counsel at the touch of a button, is a format that works.
The New Reality?
While It might seem unfriendly, and unnatural, for lawyers to take steps to minimize interaction with or keep a distance from, clients and witnesses, it is possible and not very difficult to prepare witnesses by videoconference or in a larger room, separating people to avoid unnecessary risk of transmission. This might not be optimal but this too may be part of our new reality.
But perhaps the corona virus will be the push we all need to get online dispute resolution figured out, fit for purpose, and fully functioning. Perhaps arbitration will be forever changed. Perhaps we will learn from this shared worldwide historical experience so that when it passes we will not revert to our past practices.
The Constitution of Kenya which is the supreme law of the land (the GrundNorm ) provides for use of Mediation and it is for you and me to adopt this method of resolving disputes to understand appreciate and conceive ideas that amicably resolve disputes. All matters can be mediated except sexual offenses murder corruption and cases against public policy.
Article 159 Judicial authority provides:
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status.
(b) justice shall not be delayed.
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) contravenes the Bill of Rights.
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice