Resources

DIVORCE, CHILDREN & PROPERTY

DIVORCE, CHILDREN & PROPERTY

PRESENTED BY CHRISTINE KIPSANG ON 27/6/2020

WASILIANA MEDIATORS  HUB     

BIBLICAL PERSPECTIVES

Marriage: Should be honored by all and the marriage bed kept pure for God will judge the adulterer and all the sexually immoral.

Husbands: Love your wives, just as Christ loved the Church and gave himself up for her

Wives: Submit yourselves to your own husbands as you do to the Lord.

Wealth: The Blessings of the Lord bring wealth, without painful toil for it.

Children: Are a heritage from the Lord, offspring a reward from him.

Divorce: The man who hates and divorces his wife says the Lord the God of Israel  does violence to the one he should protect says the Lord Almighty so be on your guard and do not be unfaithful.

Children

 

Marriage

  • God.
  • Capacity – Male & female.
  • Love ,trust &  faithfulness/attractiveness.
  • Companionship-affirmation/confidence.
  • Children+wealth. Reconciliation.
  • Acquire hold movable & immovable property initiatives.
  • Pride/third party.
  •  Listening  & wisdom.
  • Dispute resolution skills.

 

LAW

  • System Of Rules To Regulate Actions Enforced By Courts.
  • Constitution  Of Kenya-Article 41
  • Children Act 2001-Sec2 &4
  • Marriage Act 2014-Sec 3
  • Matrimonial Property Act 2013- Sec 4
  • Land Acts Of 2012
  • Law Of Succession Cap 160.
  • Equal Rights & Obligations

 

WEALTH

Black Law  Dictionary;

All material objects, capable of satisfying human wants, desires, or tastes, having a value in exchange, and upon which human labor has been expended; which have, by such labor, been either reclaimed from nature, extracted or gathered from the earth or sea, manufactured from raw materials, improved, adapted, or cultivated, Honor/Dignity.

ARTICLE 10

Human dignity equity social justice inclusiveness equality human rights non  discrimination/protection of the marginalized Equal protection equal benefit of the law. Full & equal enjoyment of all rights & fundamental freedoms Women & men have the right to equal treatment/ right to equal opportunities in political, economic, cultural and social spheres.

State /Person shall not discriminate  race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.

 

ARTICLES 41  & 260

ARTICLE 41

Article 41 Every person has the right to fair labor practices. Fair remuneration; reasonable working conditions; form, join or participate in the activities and programmes of a trade union; and  go on strike.

ARTICLE 260-Person- includes a company, association or other body of persons whether incorp or unincorp;   “Property” includes any vested or contingent right to, or interest in or arising from— land, or permanent fixtures on, or improvements to, land; goods or personal property; intellectual property; or money, choses in action or negotiable instruments.

WEALTH RETENTION SUPPORT   PLANNING

  • Work
  • Company  shares, Trust,
  • Partnership ,
  • Sole proprietorship business registration, Saccos
  •  Land
  •  Savings
  • Record Keeping /Contribution
  • Oral & Written  Wills/Succession estate planning
  • Matrimonial home/property Management.
  • Child care. Farm work.  Family Business Man

 

DIVORCE & SUPPORT SERVICES

  • Matrimonial proceedings
  • Division of Matrimonial Property
  • Proof of Direct/Indirect Contribution
  • Children Court Proceedings
  • Mediation services

 

Medical Care and Services – Surrogacy process in Kenya

Medical Care and Services – Surrogacy process in Kenya

Surrogacy process in Kenya :Legal and Ethical issues.

  • LSK WEBINAR on 16/6/2020(2-3.15pm)
  • By Christine Kipsang Advocate P105/4401/01.

 

THE KABU’S STORY


 

INTRODUCTION

  • Medical illness –Fibroids, Early menopause, Age related reproductive problems. Own Genetic Baby. Ips.
  • Fertility expert advice-egg donation pool. Many attempts.
  • Simple and safe procedure is gestational Surrogacy.
  • Success rate is 70-80 %
  • Traditional Surrogacy success rate is 55-60 %
  • Young women aged 25 years or younger have healthy eggs.
  • Fit and healthy,F4 or university level of education( Get Selected)
  • No miscarriages and for 9 months not breastfed.
  • IVF &ART Professionals.
  • Legal Practitioners.

WORLD FERTILITY RATES.

  • A UN report released in 2015 on world fertility patterns noted that common states where infertility rates were high from 1970-2015 included:
  • Germany Spain Portugal China, Macao SAR, Hong Kong SAR, Japan
  • Republic of Korea
  • Africa and Kenya infertility is low.
  • Consequently this translates to most couples from these states seeking to start families either through surrogacy or adoption both internally and externally. With success rates for both IUI and World Fertility Pattern 2015

SURROGACY

  • Surrogacy is the action or state of being a surrogate .The process of giving birth as a surrogate mother or arranging such a birth .Surrogacy contract involves an arrangement in which a woman carries a pregnancy “for” another couple. Due to infertility surrogacy comes as an alternative when the infertile woman or couple is not able to reproduce. In ideal situation, a surrogate mother bears & delivers a child for a couple/ person through assisted reproductive techniques (ART).
  • Gestational surrogacy denotes the process by which the egg is extracted from the IM of the child, and then inserted into the surrogate’s uterus.
  • The embryo, is fertilized by in vitro fertilization, is implanted into the uterus of the surrogate mother who carries and delivers the baby. using the eggs and sperm of the intended parents or donors.
  • The baby –biologically related to IPs & the surrogate simply a “carrier.”
  • Surrogate – the eggs and sperm of the IPs or donor are implanted on surrogate mother( gestational carrier), the embryo is created by IVF, then transferred to the surrogate.

 

GESTATIONAL SURROGACY

  • GS can also be referred to as “host surrogacy” or “full surrogacy.”
  • GS costs are inclusive of;
  • IVF processes –Full Cycle and medication
  • Payment to surrogate-Clothing ,food & accommodation
  • Legal costs, which entails advocates consultation fees/ drafting contracts
  • Fertility clinic and surrogacy agency fees
  • Health care for the gestational carrier.
  • Emotional and mental support-happy at home or surrogate homes.

 

TRADITIONAL SURROGACY

  • GS is more common than traditional surrogacy due to fewer legal complications.
  • TS is the SM is impregnated with the sperms of the IF artificially, thus making her both genetic and GM.
  • Surrogacy –may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.
  • Commercial Jurisdictions- India Ukraine California allow commercial Surrogacy.
  • Altruistic Surrogacy Jurisdictions- UK USA Germany Sweden Norway and Italy.
  • Surrogate agencies-Agents and Middle-men.

TRADITIONAL SURROGACY.

  • This entails the process of artificial insemination whereby the ovule of the SM is fertilized with a sperm from the IF or donor.
  • The SM carries the baby during the gestational period and delivers the baby.
  • After delivery the SM being the baby’s biological mother is required to relinquish her parental rights and in so doing her responsibilities as well.
  • TS is also called partial surrogacy or genetic surrogacy due to the surrogate’s biological link to the baby.
  • Single men and women.
  • Same-sex couples.
  • IMs who cannot ovulate or cannot safely carry a pregnancy.

 

SURROGACY ARRANGEMENTS

  • IPs identify a surrogate willing to contract with them in the surrogacy arrangement. Agents or a chart with life history of surrogates.
  • Draft and sign legal contracts- the IPs and surrogate mother- as pointed out TS is legally complex due to the fact that the surrogate is the biological mother. Include a clause Surrogate will hand over child after birth.
  • The IPs would be required to complete and file documentation in order to have parental rights over the child after birth.
  • The SM is inseminated through Intra uterine insemination (IUI). This process is considered to be less expensive and exertive than IVF.
  • The surrogate carries the foetus until delivery.

 

TRADITIONAL SURROGACY

  • Traditional surrogacy costs include:
  • Surrogate’s medical expenses, inclusive of costs for the IUI,Tests for AIDS, Hepatitis STDS.
  • Advocates and agency fees
  • Counseling fees
  • Surrogates monthly allowances
  • Surrogate’s compensation
  • Estimated cost for traditional surrogacy ranges and this is exclusive of other expenses like allowances and compensation.

 

ATTRIBUTES OF TRADITIONAL SURROGACY

  • Less expensive than GS. The procedure utilizes IUI the IMs do not need to undergo medical procedures because their eggs will not be harvested to create the embryo.
  • A traditional surrogate is the biological mother of her child, meaning she has parental rights and the power to change her mind and keep the baby. The IPs would then need to go to court to gain custody of the child. Adoption or parental order.
  • Complicated & extensive legal requirements-Ips to complete a step-parent adoption to both be recognized as the child’s legal parents.
  • Many surrogacy professionals do not offer TS programs, and many surrogates are more comfortable with GS than TS.
  • Intended mothers are never biologically related to their children in traditional surrogacy.
  • This type of surrogacy – the couple/individuals opt to have a child partially of their genetic makeup.
  • Is banned in many countries.

 

SURROGATES

  • The select couple or individual contract with surrogate mother with the hope of having a child through surrogacy. Charts or other options.
  • Young above 18 and older than 25 years of age.
  • Have had one life birth of their own.
  • Not Pregnant.
  • Not breast feeding for last 9 months.
  • Single or married.
  • Skin colour, height, Eye Colour, Healthy.
  • Education level –Form Leaver or University Graduate.
  • Register with Surrogacy agencies/agents/middlemen

 

Surrogates help would -be parents.  In times of need as the remedy to the unforeseen/unintended inabilities faced by the commissioning parent. To any human being it is desirable/gratifying to have a child of one’s own.

Upon implantation, moment of ecstasy follow & a lot is overlooked, the surrogate is human with humanly needs as well.  More often than not a surrogate will be appreciated mostly for the value she possesses to the IPs & likely to result in indignation. The array of issues faced by surrogates-Sleep, nutrition, upkeep, own the child, exploitation, psychological issues.

 

COMMISSIONING PARENTS(Ips).

  • Heterosexual couples- the female partner has reproductive complications,
  • Same-sex couples or
  • Single intending parents.
  • Driven by the natural desire to raise a biological child despite reproductive health issues . Desire to have genetically derived children, couples & individuals search of suitable surrogates, surrogacy laws protect their interests, the standards medical care available for the surrogate mother.
  • Steady raise in surrogacy arrangements across the countries to afford surrogacy opportunities and enforce the contracts by the parents and the agencies.
  • Open laws, high fertility rates, availability of surrogates, cost of surrogacy processes and agency fees and other factors.
  • Face a lot of uncertainty. Online Searches for donors surrogates,clinics Success rates of both IVF and IUI mean that no guarantee of having children through surrogacy.
  • Breach of contracts- fail to honor their obligations as per the contract leads to unnecessary litigation. E.g the Baby M case in the USA.
  • Undesired effects- the child born with complications or genetic disorders.
  • the IPs may be forced to incur perpetual and unforeseen costs of bring up the child eg the case of Gammy, a baby with Down’s syndrome  born to a Thai surrogate mother & left behind by the intended Australian parents.

 

SURROGACY IN KENYA

  • No legal framework . COK ,Children Act, Convention on the Rights of a child.
  • Not Prohibited not Regulated, it is taking place everyday.1VF Bill,ART Bill.
  • Taken as fertility treatment so IVF and surrogacy widely accepted by those affected.
  • Religious leaders oppose it. Others prefer Adoption process or fostercare.
  • 6Million children are in institutional homes waiting for adoption.
  • Others view it as a form of human trafficking like a case I handled in Mombasa. Police arrested and charged the IP, SM and the medical doctorand child was taken to an orphanage.
  • Unregulated surrogacy programs. Surrogacy agencies /Middlemen exploits.
  • Low quality medicare .Risks of violence on Same Sex Couples.
  • Right to form and be part of a family- the natural and fundamental unit of society and the necessary basis of social order.Rights of dignity for all children.
  • The In-vitro Fertilization Bill, 2014
  • Since most Ips are from other countries so read the Statutes in UK Australia USA and European countries.
  • Some have Parental Order to regulate parental rights while others adoption process.
  • There is a Bill known as Assisted Reproductive Technology Bill which gives heterosexual couples the right to gestational surrogacy in Kenyan clinics. It limits to altruistic agreements only (reasonable expenses).Transfer of parenthood needs to be included in the Bill.
  • Surrogate Agreement only is not guarantee to parental rights to Intended Parents.
  • The surrogate remains the legal mother.
  • Under a surrogacy arrangement must take one more step to complete the legal journey.
  • File OS include medical evidence, Ips documents, SM and Children Dept.
  • This is the Parental court Order process to transfer parenthood.
  • Birth certificate to reflect the intentions of the Surrogacy Agreement.
  • Same Sex Couples warned of using Kenya as a Surrogacy option since homosexuality is outlawed in Kenya- one partner(OIP) to sign surrogacy agreement with surrogate Mother (SM)only.

 

LEGAL & ETHICAL ISSUES

  • Language barrier in foreign country.
  • Long legal battles to get the child/disown child or child live in orphanage.
  • Waiting period of 2-3 months for formalities after birth citizenship nationality motherhood parentage and rights of a child.
  • Poor, illiterate women, rural background.
  • persuasion by spouse or middlemen to earn easy money.
  • No right on decision regarding their own body and life.
  • No provision of psychological screening or legal counseling.
  • Recruitment by commercial agencies.
  • Shifted into hostels for the whole duration of pregnancy on the pretext of taking antenatal care.
  • Real motive is to guard them and to avoid any social stigma of society.
  • Spend the whole tenure of pregnancy affecting about their household and children. Allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays.
  • In case of unfavorable outcome of pregnancy, are unlikely to be paid,
  • no provision of insurance or post-pregnancy medical and psychiatric support for them.
  • Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers(SM).
  • Surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.
  • Scope of surrogacy agreements and their legal enforceability to contain all issues
  • Registration and regulate the IVF and ART centres.
  • Forum to file complaints for grievances against clinics and ART centres.
  • Age of surrogates.
  • Number of deliveries before being a surrogate.
  • Number of times of Embyro transfers per Surrogates.
  • Consent of her spouse for a married woman to act as surrogate to prevent legal and marital dispute.
  • Consents for injections & screening for STD communicable diseases and no blood transfusion for last 6 months to avoid adverse outcomes.
  • Spend the whole tenure of pregnancy affecting about their household and children.
  • Allowed to go out only for antenatal visits and are allowed to meet their family only on Sundays.
  • In case of unfavorable outcome of pregnancy, are unlikely to be paid.
  • Lack of privacy for Surrogates.
  • No provision of insurance or post-pregnancy medical and psychiatric support for them.
  • Rich career women who do not want to take the trouble of carrying their own pregnancy are resorting to hiring surrogate mothers(SM).
  • Surrogacy, which has become more of a commercial racket, and there is an urgent need for framing and implementation of laws for the parents and the surrogate mother.
  • All the expenses, insurance of surrogate medical bill, other reasonable expenses related to pregnancy, childbirth by intended parents.
  • A surrogacy contract to include life insurance cover for surrogate mother.
  • The surrogate mother to receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate.
  • Save poor surrogate mothers from exploitation, banks should directly deal with surrogate mother,
  • Minimal remuneration to be paid to the surrogate mother should be fixed by law.
  • Surrogacy arrangement ought to provide for financial support for the surrogate child in case the IPs die before delivery of the child.
  • Divorce between the IPs and subsequent willingness of none to take delivery of the child so as to avoid injustice to the child.
  • A surrogate mother should not have any parental rights over the child.
  • Birth certificate of the baby should bear the names of Ips as parents in order to avoid any legal complications.
  • Legitimacy of the child born by ART shall presumed  the legitimate child of the married/unmarried couple/single parent with all the attendant rights of parentage, support, and inheritance.
  • The ART clinics should not be allowed to advertise for surrogacy for its clients.
  • Couples should directly seek facilities of ART Bank.
  • Ips should be legally bound to accept the custody of the child/children irrespective of any abnormality in the child/children.
  • Confidentially should always be maintained
  • The right to privacy of the donor as well as surrogate mother should be protected.
  • If a foreigner is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government
  • , Appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple
  • Sex-selective surrogacy should be prohibited, and abortions should not be allowed
  • No termination of pregnancies.
  • Distress on the part of the surrogate especially when the time for giving up the child arises.
  • Human beings especially women who have had to carry pregnancy to term there is usually an inexplicable prenatal bond created.
  • The ultimate detachment can result in depression to the surrogates.
  • Prenatal detachment between the surrogate and the yet to be born child.
  • SM has full knowledge that upon the birth of the child she will not have parental rights over the child hence tries to mitigate the ultimate outcome.
  • Harmful to both the surrogate and the child.
  • most surrogacy arrangements are carried out for purposes of subsistence.
  • Surrogates do inadvertently push themselves to the limit thereof.
  • Surrogate moms face increased pregnancy risks that come with carrying multiple embryos, which are often used to ensure success.
  • Multiple births come with an increased risk of Caesarian sections and longer hospital stays, gestational diabetes.
  • Fetal growth restriction.
  • Eclampsia,
  • Premature birth.
  • The drug, Lupron, which is used to transfer embryos, has also been documented to put surrogate women at risk for increased intracranial pressure.
  • Commercial surrogacy is prohibited in many jurisdictions,it does take place nonetheless.
  • Surrogates do normally get paid on the basis of loss of income for the period that they on pregnancy.
  • Surrogates belong to the poorest strata of the society, surrogacy exploit women from a more economically disadvantaged background financial hardship without being fully aware of the potential risks.
  • Rising trend does indicate the growing rise of commercial surrogacy as opposed to altruistic involving women without the financial capacity to cater for themselves.
  • This has particularly been the case in India was so prevalent that as of 2015, 25,000 children had been born vide surrogacy.

 

WAY FORWARD

  • Surrogacy in Kenya is being conducted largely unregulated and there is commodification of women’s bodies we need the current Bill enacted into  law to govern surrogacy arrangement to cover all medical legal issues.
  • Nature abhors a vacuum.
  • You can speak with your Member of Parliament.

CASELAW

  • Case of AMN & 2 OTHERS VS AG.
  • XY-Ips and SM -Z
  • KNH AG HIGH COURT/UK CITIZENSHIP – ISSUE was NOTIFICATION
  • Adoption for lawful parenthood

 

Virtual Court Etiquette

Virtual Court Etiquette

PRESENTATION TO MLS /MSA LAW COURTS TEAMS MEETING ON 22/5/2020

BY  CHRISTINE KIPSANG-MLS  VICE CHAIRPERSON 2020-2021

Covid -19 pandemic season

  • Lets understand the context of our legal practice /court sessions online
  • MOH warnings during this Covid -19 Pandemic
  • Wash your hands &Sanitize
  • Social distance
  • Wear a mask –appropriately e.g CS
  • Remote working mode
  • Visiting the court premises then sanitize at the gate,co-operate with security and register yourself for contact tracing.
  • Create awareness on these measures among your family friends and children .

 

Etiquette

  • The Dictionary defines etiquette as “The customary code of polite behaviour in society or among members of a particular profession or group.”
  • Etiquette enables the individuals to earn respect and appreciation in the society. No one would feel like talking to a person who does not know how to speak or behave in the society.
  • Etiquette inculcates a feeling of trust and loyalty in the individuals. One becomes more responsible and mature. Etiquette helps individuals to value relationships.

Court Etiquette

  • Making a good impression
  • Code of behaviour
  • Rules of conduct
  • Dressing
  • Addressing court
  • Navigate on/mute/thankyou
  • Natural Justice/Case preparations
  • Home settings /apply backgrounds
  • Adjournments/Time Allocation

 

Applicable Law

THE ADVOCATE’S ACT:

  • Section 33:Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognized by law as qualified to act as an advocate shall be guilty of an offence.
  • Section 55:Every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary Tribunal:

LSK ACT NO.21 OF 2014

  • Section 4 (e) and (f)
  • maintain and continuously improve the standards of learning, professional competence and professional conduct for the provision of legal services in Kenya;
  • determine, maintain and enhance the standards of professional practice and ethical conduct, and learning for the legal profession in Kenya;

 

Guiding Principles

LSK ACT 21 OF 2014.

SECTION 6 – FIVE PRINCIPLES.

  • The maintenance and advancement of constitutionalism, justice and the rule of law;
  • The facilitation of access to justice;
  • The protection of public interest;
  • The maintenance of integrity and professionalism; and
  • The promotion of cross border legal practice, inclusivity and equity.he

THE CONSTITUTION OF KENYA

Access to justice: Article 48

  • The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

Fair Hearing:Article 50

  • Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

 

Logging Into Virtual Court

  • https://teams.microsoft.com/l/meetup-join/19%3ameeting_MmE0MjU3NmQtZTI5Yy00NzFlLThjMTItOTcwNTUxOTRjMjk3%40thread.v2/0?context=%7b%22Tid%22%3a%22e555d085-bd33-4db9-b7bc-4f48bdea1105%22%2c%22Oid%22%3a%22f8fdfa85-b995-441e-b06c-8be07fc674f9%22%7d
  • Cause lists -2 versions –need to integrate.

Introductions

  • Introduce yourself to the presiding judge
  • Use surname only to the Judge
  • Do not refer yourself by title Mr, Mrs and Miss..
  • No exchange of bows as form of salutation
  • Your Honour for the Court and my learned friend for colleagues.
  • Rationale of court introductions is to make their presence known to the court for purpose of record, show attention and type of relationship between advocate and their clients  and maintenance of fairplay. Show Courtesy and respect.
  • Mute mic/on/Thankyou.

Punctuality

  • Be punctual and meet deadlines-An advocate should never be late.
  • Apologize to the court, briefly explain reason for delay with utmost sincerity(Do not cry or dramatize).
  • Log in 2 mins before time
  • Wear a watch
  • Do not interrupt a session.
  • Mute /on/thankyou

Dress Code

  • Related to administration of justice
  • Portray dignity strength and authority.
  • Exude power and demand certain kind of respect and dignity
  • Darker the color the more authority the attire conveys.
  • Gray or navy stripes suit communicates the highest authority .
  • Modest dressing in public in a manner that lends itself to the dignity of the legal profession
  • No revealing tops or dresses for female advocates
  • Neck ties and full suit for male advocates
  • Shoes are black or dark colours. See the Sandstorm case about a tie….
  • Court Session

Entering and leaving a Court Room

  • Walk, bow and sit down-We have been used to standing to address court.
  • Enter court room and sit quietly –no whispers
  • Do not wander or walk about in court-do not move from your position without permission of the Court.
  • Passing message related to the matter is per the chat message or raise your hand.
  • Acknowledge as the court pleases or most obliged
  • Quietly exit
  • Mute/on/Thankyou.

 

Disrespectful Behavior

  • Taking Phone calls
  • Texting and engaging in online activities such as emailing
  • Talking
  • Small talks with other advocates unrelated to the matter
  • Using slang cursing or use disrespectful words
  • Showing disrespect to court witnesses.
  • Use of humour
  • Food and drinks other than water.
  • Noise from children, dogs, door, chairs
  • Playing music or even loud music
  • Whispers can be noises too.
  • Mute/on/thankyou

 

Natural Justice

  • Officers of Court
  • Show care for each other
  • Be humane and reach out by texts and calls one to another
  • Act competently and diligently
  • No Bias
  • Open mind
  • Without prejudice
  • Honest, integrity ,Frank and not knowingly mislead court by providing false or inaccurate information.
  • Not practice of deception on the court.
  • Assist Court by putting evidence that meet ends of justice

Virtual Backgrounds

  • Settings
  • Review
  • Apply
  • Test mic
  • Test camera
  • Sit upright
  • Speak up for recording is on
  • No gestures unless extremely necessary
  • Do not move away from the range of the camera
  • Video on /off
  • Mute/on/thankyou
  • Adjournment /quick interventions
  • Log in
  • Make application
  • Take time indication
  • Log out
  • Log in on time
  • Chat in private room online or make calls for consents /way-forward on issues.
  • Address court
  • Mute mic/on /thankyou
  • Chat when necessary

 

THANKYOU

ONE MORE THING JUST FOR YOU……….!

ALWAYS LOOK STRAIGHT INTO THE CAMERA

 

Online Mediation

Online Mediation

by Christine Kipsang – Certified Professional Court Accredited  Mediator, Mombasa Court Annexed mediators  zoom meeting on 3/5/2020

Online mediation  is a suitable method to resolve a dispute for certain types of conflicts and parties using electronically stored information  or e-discovery  with the services of e-neutral called e-mediator can facilitate the resolution of the e-discovery dispute(s).Mediators may feel unsure about online mediation, however the more you use technology the more it becomes familiar with you as the user. Parties may have hesitation however as mediator you take the role of sensitizing the parties since most of the online platforms e.g. Zoom Microsoft Teams Skype go-meet google-meet are user friendly.

Mediation is often used to adjudicate disputes and it is now institutionalized in our laws and constitution of Kenya 2010(see Article159(1). We have gazetted Mediation Rules 2015 and Practice directions as well as Mediation Manual Mediation is a negotiation between two or more parties facilitated by an agreed-upon third party. Mediation training and refresher courses are now being online. For professional mediators we encourage accreditation by the Judiciary in-order to have bigger pool of mediators in Mombasa and in the country. Many disputes are now requiring mediators’ intervention and those planning to undertake the Mediation course the right time is now to join us.

We know that skilled third-party mediators can lower the emotional temperature in a negotiation, foster more effective communication, help uncover less obvious interests, offer face-saving possibilities for movement, and suggest solutions that the parties might have overlooked. Mediator have immense power and are powerful peace makers.

Now that Courts are embracing e filing and video conferencing to conduct litigation  as mediators we need to adopt Online mediation process as we continue to sparingly use the traditional mediation method of face to face interactions.

As Court Annexed mediators we have been receiving instructions through email for all Court annexed mediation files and now it is time we upscaled this during this Covid -19 crisis we are facing as human beings all over the earth. Online mediation is effective so let’s adopt it taking caution on cyber security for ourselves and parties.

Essentials of Online Mediation

Emails talks: effective, slow, you miss on body language ,facial expressions and other in person signals, insulting/sending hostile messages or abandon process when frustrated. Get buy-ins from parties and advocates involved for virtual sessions to avoid non-compliance.

Telephone: quick though prone to mis-understanding, lack of rapport and warmth of face to face talks. Have working telephone, charge well and load it with adequate airtime.

Video conferencing –see each party so then the room lights quiet environment and no distraction, stable internet supply connection. Parties do the same. Agree on videos on strategy to avoid photos or names only. The natural organic flow of information is essential. Upgrade apps and invest in good Anti virus security.

Real time chats/conversations –invest in airtime credit and data bundles and agree on timelines.

Exchange documents via emails  by parties – the mediator guides the process on when to share them so that the parties do not request to share what was not agreed from the Preliminary meeting stage.

Use direct problem solving approach and carefully craft responses and strategy  to deal with statements of dominant and reserved parties. Timing and response is key. Get familiar with Technical support of the app.

Advantages of Online Mediation

Geographical: There are no geographical restraints. The only requirement to participate is an internet connection.

Time: There are significant time savings can be made, namely through the reduction in missed or rescheduled meetings and travel between meetings. Which can be considerable.

Costs: The removal of overheads such as meeting locations mean there is likely to be yet more cost savings, which is ideal for low value cases. No travel costs. Parking spaces and renting meeting room.

Convenience: The options for dates and times of meetings open up with online mediation. A lot of posturing will happen and parties will prevails.

Viability: As with all mediation, no dispute is too small but with further reduced costs, it seems a viable option for any dispute.

Stress: Acrimonious disputes are not exacerbated by face to face meetings. This is particularly poignant in marital and family disputes.

Inclusion: Those that are severely disabled or have extreme poor health can still be active participants in online mediation.

Flexibility: For all the reasons stated above, no one can argue the flexibility afforded to all parties of online mediation.

Disadvantages of Online Mediation

Concerns of cyber security. The Meeting ID and Password if shared out then unauthorized persons can join and disrupt the mediation process leading to adjournments.

Non- Compliance by parties due to technical support hitches leading to rescheduling.

Parties suffer  inconveniences by being in  different time-zones with Mediator.

Some on-line technical applications are limited e.g. having break out rooms options for caucus process and thus limit the parties options to hold group discussions privately with the mediator.

Online Mediator Toolkit

Equip yourself with analytical skills and establish a rapport with parties in-order to be effective. Communication Skills. Read widely. Understand human behavior. Invest in good internet supply. Take refresher courses online. Mentor young colleagues . Give pro-bono mediation services.

Gain parties trust and confidence .Truly understand the parties interests then parties will be willing to settle. Then reframe the issues and float creative solutions. Be familiar with technology &its use.

Work subtly so that parties leave feeling they have reached accord largely on their own -a strategy meant to deepen their commitment to honor the agreement.

Embrace the breakdowns, break throughs, windows of opportunities lost or found and remember you are in control and in charge of the mediation process as a mediator.

Sensitization and creating awareness of online mediation to the court users and the society at large.

Court annexed mediation committee to supply parties contacts –telephone emails that actually work. Mediators to maintain working email addresses and mobile telephone numbers for effective communication. Provide Standard Checklist and directions for online mediation process.

Conclusion.

Online mediation requires detailed preparation of the parties and the mediator before any session is commenced. It is critical to countercheck the documentation is right, the timing is convenient and all parties have adequate equipment and support to go through online mediation. As  mediator it is essential you avail yourself to answer all preliminaries and take cognizance of the 60 days required to start and complete a mediation file if given by MAC or the timelines the parties may agree to for any other mediation matter.

When all is set then you can introduce yourself as mediator to all the parties.

Make all parties feel comfortable as much as possible bearing in mind the choice of language the parties prefer.

Explain role of mediator as neutral party to all the parties and the critical role of parties and their advocates.

Goal is fair and just results /settlement by the parties involved and use of electronic signatures and emails.

Get pre-mediation documents from the parties and explain how further exchanges can take place& timelines.

Give general statement of what is the issue involved.

Outline the process of mediation. Discuss the ground rules/protocol to be used or followed. Then follow the five steps of traditional mediation. Arrive at a settlement& execute electronically to parties and court as the case maybe.

 

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