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Before Court, Try Mediation. It Works!

  Feb 9, 2018
 

Anthony Gross – founder member and Director of the Dispute Resolution Center, now amalgamated with the Strathmore Dispute Resolution Center under the law school and Dr. Edward Mungai – Associate Dean, Research and Academic Director Entrepreneurship Programmes explore the advantages of Mediation as a Dispute Resolution model.

Early in 2017, The Kenya Association of Manufacturers and the Kenya Magistrates and Judges Association rolled out a Commercial Law Guidebook to help companies understand the process of resolving disputes. This was in bid to clear the “backlog” currently being experienced in the various courts. According to the Judiciary Case Audit and Institutional Capacity Survey, 2014, the court of Appeal takes at least 1,179 days to clear or issue a verdict on a commercial case.

“As much as we would all like to agree that personal and organisational agreements will hold what we seek, we know that we can also never foresee everything. That is why it is very crucial to consider how you will solve disputes. Sometimes, what started with a handshake can end quite messy.” Dr. Edward Mungai.

Litigation in dispute resolution is usually the first attempt to dispute resolution especially on occasions of conflict and breach of contact. Given the slow process of litigation in settling disputes and the financial constraints in doing so, the demand and appreciation for out-of-court settlement is growing in popularity.  Amicable and favorable channels such as mediation are becoming suitable dispute resolution for many Entrepreneurs and Corporate firms. Last year, the Judiciary conducted a one-week Mediation try out, and the survey illustrated that: 574 Commercial Cases were settled as of June 2017.

“The role of a mediator is to help parties reach a solution to their problem and to arrive at an outcome that both parties are happy to accept. Mediators avoid taking sides, making judgements or giving guidance,” remarked Anthony Gross.

The mediator does not impose but brings possibility of alternatives avenues of solving the dispute.

Overview of Alternative Dispute Control – Mediation

Thinking of resolving your dispute through the mediation process, here are some of the crucial elements to consider while doing so:

  1. While signing a contract ensure that a dispute resolution clause is included into the contract. What channels should the involved parties make use of? What should be the dispute resolution process? Do the parties consider litigation, arbitration or mediation?
  2. Should or on the event that the two parties settle on Mediation, it is also crucial to establish the criteria of appointing the mediator. Thereafter, the mediator will form the ground rules in which the two parties shall engage.
  3. The mediator initiates a favorable ground in which both parties discuss the implications of the dispute. The aim of this process is to ensure that both parties get an understanding of the challenges in which the other is facing
  4. As the process approaches the later, in the problem-solving stage, the mediator engages the two parties separately to discuss the case and the settlement thereof. The information shared to the mediator is confidential and hence the discussions of the meeting are not discussed with the other group. The mediator after thorough evaluation of the two settlement options, encourages both parties to openly discuss their settlement proposals. The mediator facilitates the negotiations, whilst encouraging the two parties to reach to a win-win settlement.

About the Strathmore Dispute Resolution Center

The Strathmore Dispute Resolution Centre (SDRC) is a Mediation Centre at the Strathmore Law School focused on facilitating and promoting Mediation and other forms of Alternative Dispute Resolution as a form of settling disputes and conflicts between individuals, within groups and in organizations. Click here to read more.



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