Another (Alternative) of Dispute Resolution; MEDIATION
Article 159 (c) of the constitution of Kenya, 2010 lays the legal basis for mediation as a form of dispute resolution. This is given life through various statutes for example the Civil Procedure Act, Communal land Act, Legal Notice No----which establishes the court annex mediation rules. Mediation is slowly gaining roots at prominence as a means for resolving disputes in Kenya.
Mediation is a more approachable means of dispute resolution for matters which do not anticipate to take the adversarial means of litigation. The good thing with mediation is that it provides a forum and the atmosphere to the parties in dispute gaining understanding, become understood and together explore options for resolution( Lawrence A. Huerta 2004).
It goes without saying that litigation is expensive. In some cases because of the high cost involved many litigants who could have gotten justice had they pursued the adversarial system but ended up failing because of lack of money to facilitate the same.
In the alternative, mediation is proving to be less expensive and economically friendly to those seeking to embrace it. In terms of cost, the parties in dispute can negotiate with the mediator and arrive at an amicable fee/charge.
Flexibility of time
The benefits of mediation in dispute resolution is that the parties together with the mediator are free to organize and program heir mediation sessions. Through this no interruptions of the parties activities or straining their daily schedule and can easily set time for the same without having to fit in the tedious court program in the normal litigation system.
The outcome of the negotiation is to a greater extent mutually satisfactory. Under mediation the parties are led/facilitated by the mediator to mutually agree upon the issues as opposed to solutions which are imposed by the court. The mediator is not mediating to give a solution or judgment but help the parties agree amongst themselves.
Privacy and Common interest
Under mediation, parties are not exposed to the general public. Many commercial and family disputes of late are resulting to mediation to safe guard their business/family images from the court exposure and public ridicule which might result to being judged negatively hence affecting their business/standing.
Unlike the adversarial court system which takes years to have matters resolved, under mediation the dispute is settled in a fast way because there is a friendly and timely way of resolving the same. By appreciating mediation, justice will be served without delay and as it goes that “justice delayed is justice denied.”
The reason as to why many people are beginning to appreciate the mode of mediation in dispute resolution is because the parties are in a better position to come up with better modes of implementation of the agreed outcome. This to a great extend implies that since the parties to the dispute participated in the crafting of the implementation modality then the compliance rate is very high compared to the normal court system where the litigants are compelled by the decision of a third part who is the judge or the magistrate.
The relationship veil is maintained.
Unlike under the adversarial system which is based on a win /lose decision making, under mediation the parties in dispute can amicably navigate through the mediation process and at the end of the process the parties common interests whether the contract for instance under commercial undertaking remains terminated or retained the parties relationship is preserved and this has really helped much in the commercial venture.
One very essential outcome of settlement under mediation is that at the end of the dispute, the parties under mediation come out more powerful and with skill and experience on handling of such disputes. This is as a result of their being active and in full involvement in the dispute.