Mediation of Employment Disputes

By Cynthia Korir

Following the hallmark provision of Article 159(2)(c) of the Constitution of Kenya (2010), which encourages courts and tribunals to promote Alternative Dispute Resolution (ADR), ADR is now in vogue; being applied to civil matters involving commercial, family and employment disputes. With ADR’s attractive attributes— such as reducing the backlog of cases in court and hasty resolution of disputes— it is not difficult to grasp why it has also been adopted within the criminal sector, with limitations to minor offences. Whilst there are different dispute resolution mechanisms ranging from Negotiation, Mediation, Arbitration, Conciliation, Facilitation, Early Neutral Evaluation and various others, the focus of this article will be on Mediation within the employment sector.

Mediation is defined as a non-binding voluntary dispute resolution process in which a neutral third party assists the disputing parties to reach a negotiated settlement, and when reduced to writing and signed by all the parties, it becomes binding. Within the employment setting in Kenya, a common realisation between employers and employees is that for ease and effectiveness within the workplace, there ought to be in place conditions that are more collaborative and less aggressive; more amicable and less hierarchical. Such conditions are not bolstered by an adversarial process, such as litigation, thus warranting a hospitable process like mediation. 

Within the context of employment disputes, mediation is carried out differently than it is done in litigation. When it comes to mediation within litigation, it involves a mediator who separates the parties and discusses the issues with each party in one on one sessions. This method of mediation would not yield favourable outcomes. This is because the main aim of mediating employment disputes is for the disputing parties to work better with one another.

There are employment conflicts that occur within a workplace which are suitable for a mediation process. Contrary to popular belief, complaints of sexual harassment can be handled through a mediation process. Often, such complaints come about as a result of one persons’ lack of respect towards the other, or stark differences between what one may view as flattering when it is in fact offensive towards the other person. Where the parties are willing to communicate and undergo the mediation process, it can save them an arduous and expensive court process.

Another employment conflict that could be suitable for a mediation process is when an employee deteriorates in his/her performance. From time to time, a good employee can stop performing well. When this occurs, a mediation process can better help the employee and employer understand the other’s requests and demands. From this process, an agreement on how to work better together in the future can come about and both parties are likely to stick to the agreement as they had a say in creating it.

Similarly, being in a workplace environment, disputes are likely to occur between the employees themselves barring them from doing their work effectively. In such cases, mediation is appropriate as it provides for a space where the employees can voice their concerns and differences and also agree on boundaries for the benefit of working together peacefully.

Another employment dispute that can come about is termination which carries litigation risk. A mediation process on the terms of separation can mitigate that risk. It is likely that the employee may not accept that the termination was warranted, however, he or she is more likely to better understand the reasons for the employer’s action. Through the process, the employee may also feel that they had a fair hearing. In this case, mediation is beneficial emotionally as it makes it easier for the dismissed employee to part ways with their organisation amicably. We see this further in Section 41 of the Employment Act 2007 which provides that a notification and hearing should be provided before termination on grounds of misconduct. The hearing involves the employer explaining to the employee the reason for termination and the employee being entitled to representation by another employee or shop floor union during this explanation. Needless to say, a mediation process achieves these requirements.  

There are situations where certain disputes may be considered unsuitable for a mediation process. For one, where one employee threatens or bullies another employee feels bullied and fears for their life. Additionally, a mediation process is likely to fail where the parties are not willing to cooperate with one another to resolve the dispute. Although the skill of a mediator is pertinent to the success of the process, this goes to show that the willingness of the parties to communicate is equally important.

In the workplace setting, mediation poses significant benefits to employers and employees. It provides quick and satisfactory solutions; it promotes mutual respect among colleagues through communication; and most importantly, it preserves working relationships amongst colleagues which makes it easier to work together. Mediation does not have to be reserved for dispute resolution. It can also be used for dispute prevention in which case an issue is addressed before it becomes a serious conflict.

Conclusively, the mediation process is gaining much approval within the employment sector as forward-looking companies are finding that it is the best dispute resolution process within management and production systems for effective performance.

The Nibble Technique: A Negotiation Success Story

By Magdaline Muhiu

To our delight this day, we sing the success classics of ‘The Nibble’

The nibble that saved our fate

The nibble that rid us of shame

The nibble that preserved the company brand

It began with out-of-court-settlement terms

In cognisance of the challenges we would face in the courtrooms

(The long and short of it being an adversarial system that was good for neither of us)

The negotiation journey began for us

The pre-trial conference saw us win our first nibble

‘Behind bars or ummh… behind bars!’

The plaintiff scoffed at us as he angrily made his way out

His exasperation bore my first idea of a nibble!

                       ***

‘Willing to settle this dispute on your settlement terms’

I humbly plead

He makes as if to fumble, then asks to call in tomorrow

The deal is sealed and now we are out of court

Nibble number 1 is the seed whose fruit of success we now enjoy

Stringent terms of settlement

An arena of hard emotions

With trace chance for any more nibbles

Is what seems to comprise the new contract

But we move as if to consent

We move as if to show empathy for our counterpart’s case

We move as if we are ready for the fall of the hammer

And as we are taking our pens ready to append our signatures

Nibble number 2 becomes the straw that broke the camel’s back

With a sly grin I make as if to enhance the deal

‘5 gold bars for 150,000 less the deal’

My client is an exporter in gold

‘No,6 for 120 first thing tomorrow morning’

Comes the reply.

We are finalizing quite close to the edge

Enter nibble number 3 that formulates our success story

‘Alright, 5 for 140’

We shake hands and exchange chuckles of satisfaction

Carrying the day,

The nibble, like the Biblical stone that the builders rejected

Becomes to us,

The indispensable tool of repute

Forever present on our tables of negotiation

For to nibble is to scribble

Success into triple!

The Portrait of a Good Mediator

By Joy Mereiyan Marima

Sandra Kaufman in her article, ‘A Formal Framework for Mediator Mechanisms and Motivations’ defines mediation as a voluntary process in which those involved in a dispute jointly explore and reconcile their differences. It is a process of conflict management where disputants seek the assistance of – or accept an offer from – a mediator, who has no authority to impose a settlement but assists the disputants in resolving their dispute. This definition denotes the mediator’s mandate but falls short in informing us what the mediator must do to achieve these elaborate goals.

In recent years, mediation has broken free of its roots in resolving labour and international disputes and has propagated into diverse areas such as divorce settlements, community strife and educational conflict. The history of mediation has shown that mediation works even when the mediator is untrained as it provides its users with  a forum for airing grievances and venting emotions – parties are in more control of the situation than they would if a judge was at the helm. This reinforces an aspect of the mediation process which is wholly separate from technique and theory: the mediator’s personal attributes. This dimension of mediation, which has received insufficient attention, has a direct impact on the effectiveness of the mediation process.

Joshua Smilovitz, in his article, ‘Emotions in Mediation’, opines that mediator behavior is pertinent to the mediation process and the observation of that behavior is an apparent area of fruitful terrain which is of import to the mediation process. Since behavior communicates an individual’s emotional status, the disputant’s perception of the mediator is directly related to observable behavior. This occurs in two avenues: body language and verbal displays. The former refers to the actual movements and mannerisms of the mediator, while the latter refers to the expression of words and written expressions. He goes further to highlight that the accuracy of the observation by the disputant is often immaterial as even if an emotion is falsely displayed, it is still perceived. A good mediator should therefore be able to make use of positive emotions which will in turn evoke feelings of trustworthiness within the disputants and ultimately, they will be able to talk more openly.

Another dimension of mediation which has received insufficient attention is the combination of psychological and spiritual qualities that make a mediator who they are. This dimension is one of the most potent sources of the effectiveness of mediation. When mediators are at peace with themselves, they are able to bring peace to a room. Successful mediators have an ability to transcend the conflict and help the parties to reach a genuine resolution of the dispute at hand. This happens even when the disputants are deeply enmeshed in seemingly intractable conflict. Mediators who are at peace with themselves appreciate the emotions that underlie each conversation and come across as genuinely concerned with the well-being of everyone involved. When they appreciate these feelings and convey a sense of optimism, both parties will follow suit.

Mediation, as a process that allows parties to discuss their positions, interests, and options for resolution, is entirely dependent on good communication to achieve greater understanding in an effort to reach mutually satisfactory decisions. A good mediator should be able to employ active listening and referencing skills which allow both parties to feel heard and to not perceive bias. Research shows that disputants often claim to prefer impartial mediators as they are perceived to be unbiased and fair. Impartiality allows a mediator to control their feelings and not invest emotionally in the outcome of the proceedings. This will enable them to better create and take advantage of opportunities for dispute resolution that assist both parties.

In conclusion, good mediators are seen as friendly, empathetic, and respectful. Disputants want to believe that the mediator has their interests in mind and will uphold the confidentiality of the discussion. If this is not guaranteed, then the disputants will not be able to talk openly, and this defeats the purpose of the process. Mediation is growing in popularity and it’s easy to see why. It is arguably one of the best methods of conflict resolution as 80% of cases that are referred to mediation come to a resolution and with the emergence of good mediators, this process is likely to continue to flourish. 

Divorce Mediation in Kenya today

By William Ngaruiya

Mediation is a social process through which a third-party assists parties to resolve their conflict. The mediator does not resolve the dispute but instead helps the parties reach a conclusion on their own. Mediation is utilised in various forms of disputes, including family disputes. There will be a primary focus on divorce mediation as a form of family mediation.

According to Kenyan scholar Kariuki Muigai, family mediation has grown to prominence in developed jurisdictions such as the United States of America (USA), Australia, Canada and Scotland. It deals with matters such as adoption, child protection, guardianship, probate, separation, and divorce. The popularity of family mediation can be attributed to the negative results of the court process. Parties would rather meet a compromise through mediation than being totally denied a portion of, for example, the property in question (as may be the case in a court process). Moreover, family mediation improves the communication of the parties, such as during the murky divorce process. This leads to parties being more cooperative during the mediation process. Additionally, family mediation saves the parties’ time and money as compared to the adversarial court process. There is also the appealing benefit of the mediation being private between the parties, where there is no fear of private matters being in public court records.

One of the forms of family mediation is divorce mediation. Divorce mediation is the out of court settlement technique that is applicable in the resolution of divorce cases. Divorce mediation is not a novel idea in the world. It exists in a plethora of European countries including Germany. Divorce mediation appeared as early as the mid-1980s in Germany, and is offered by private practices. In England and Wales, family mediation (particularly divorce mediation) was given backing in 1996 within the Family Act. The key benefits of family mediation in the realm of divorce are clear from this Act: it removes fault; there is a reduction of distress to both parties involved and the children affected; it promotes a healthy continuing relationship between parties involved including the children; and it prevents ‘costs being unreasonably incurred in connection with the procedures’.

However, divorce mediation is not appropriate for every dispute, for example, in situations where the parties involved have a history of domestic abuse. This is evinced in many jurisdictions, including Norway. In Norway, the Marriage Act prevents cases of domestic violence being sorted out through mediation. Domestic abuse is inclusive of a plethora of forms of abuse; whether physical violence, threats, forced isolation from friends and family, or economic abuse. The power dynamics in a relationship where that has been domestic abuse make it inherently unfair to the victim of the abuse during the process of divorce mediation, as they are forced to make concessions and agreements with the partner who has abused them.

Kenya puts at the forefront the protection of its family unit, as exemplified in Article 45 of the 2010 Constitution of Kenya. This Article appreciates the family as ‘the natural and fundamental unit of society and the necessary basis of social order, [which] shall enjoy recognition and protection of the state’.  Also, the government places a keen watch on the welfare of children, especially in the process of divorce as seen in Section 4 of the Children’s Act (2008) which protects the interests of the child and the right of the child to be heard in matters that will affect him/her.

The Marriage Act (2014) recognises mediation in Christian marriages, customary cases and civil marriages. The Act recognises informal justice mechanism such as conciliation and mediation. For a Christian marriage, the couple can seek reconciliatory services from their places of worship, for a civil marriage, the parties are allowed to seek conciliatory process agreed to by both parties and for a customary marriage, they may seek customary devices of marital dispute resolution. Moreover, the Act recognises the importance of marriages and family to society and as a result, before one can get a divorce, they have to attempt the aforementioned dispute resolution measures.

Divorce mediation has more advantages than divorce litigation. Divorce mediation reduces anxiety of the parties in the session, there is a better understanding of the process, and there is better adjustment by the children in post-divorce conditions. Interestingly enough, child inclusive divorce mediation leads to the advancement of justice to the children, as they are also considered in the process and their rights under Section 4 of the Children’s Act are observed. It is also a desirable means of dispute resolution as it takes less time than a divorce case in court and the parties will spend less time and money in solving the dispute and it also confidential meaning the proceedings will not be able for viewing by the public ensuring the parties are safe to say anything in resolving the dispute.

Not only is divorce mediation a form of alternative dispute resolution (ADR) recognised in Article 159(2) (c) of the Constitution, but it has also been backed up by the Court Annexed Mediation introduced on April 2016. The Scheme’s main role is to decongest the backlog of cases in Kenyan courts, as well as encourage persons to avoid litigation where ADR would be more appropriate. With a particular focus on divorce mediation in Kenya today, after the implementation of the CAM, there has been rapid awareness and involvement of family mediation in resolving familial disputes (including divorces) and this has led to a settlement rate of 55.7% in family cases. The new CAM scheme and the provisions of the Marriage Act strengthen the stance of the nation on the use of ADR mechanisms in solving marital disputes as opposed to litigation. There is also a growing need for the current divorce mediation in the country to be a more child inclusive/focused. Child inclusive mediation fully ensures that the needs of the child are met and are protected. This will help to ensure that the child does not go through any emotional distress.

In order to make family mediation widely issued in the realm of divorce, Kenyan Laws should stipulate that ADR ought to be a mean through which divorce can take place, for instance, a judge can relegate a divorce case to mediation. There is also a need for more public awareness of the existence of divorce mediation. Family mediation, in general, should also be continually encouraged as it could solve a great number of family disputes and will ensure the enhancement of communication between the familial parties involved. Moreover, divorce mediation needs to be more child inclusive and focused so as to protect the most vulnerable parties in the entire divorce process.

Justice v Settlement: A Case for Alternative Dispute Resolution Measures

By Joy Mereyian Marima

In the recent past, a diverse range of dispute resolution methods commonly known as Alternative Dispute Resolution (hereinafter ADR) has gained worldwide recognition, a growing role in legal practice, as well as academic recognition. ADR refers to dispute resolution processes that differ from and therefore serve as alternatives to court proceedings. In Kenya, these methods have gained Constitutional recognition pursuant to the enactment of the 2010 Constitution of Kenya. Article 159(2) of the Constitution states that in exercising judicial authority, courts and tribunals shall be guided by alternative methods of dispute resolution including arbitration, mediation and traditional dispute resolution mechanisms (TDRMs). Each method is inherently different. Their primary difference lies in their structure, purpose, complexity, and thus the potential outcomes.

The importance of ADR has significantly grown over the years, especially in cases with deep emotional overtones which tend to outlive the conflict itself. Despite its professed advantages, ADR has also faced fierce opposition. One of the arguments that has been posed by adjudication proponents is that more often than not, ADR leads to settlement as opposed to justice— a problem that renders the system inherently defective and therefore not suitable to serve as an alternative to the traditional court system.

Settlement is an alternative to pursuing litigation through trial. It is where the defendant and the claimant come to a mutual agreement through bargaining. A settlement ends the ongoing litigation as the parties’ resort to the mutually reached agreement. Justice refers to the constant and perpetual disposition to render each man their due and in the most extensive sense of the word, it refers to the conformity of our actions and our will to the law.

Owen Fiss— in his famous article ‘Against Settlement’— opines that settlement as a product of ADR proceedings is a highly problematic technique because the consent may often be coerced in the absence of a trial or a judgment. He elaborates on three reasons for his view which are important points to consider. 

Firstly, he recognises that settlement is a function of the resources that are available to each party. Therefore, a disparity in resources could influence the settlement as the poorer party may need the damages he seeks immediately and thus be induced to settle as a way of accelerating payment. This, however, is not the case in the traditional court system as a judge is put in place to lessen the distributional inequalities, the presence of a judge enables him to employ measures such as inviting institutions and persons to participate as amici.

Secondly, a settlement cannot substitute a judgement made by a judge in the traditional court system because in ADR proceedings when parties come to a mutual agreement, it is the end of the proceeding. However, in traditional courts the declaration of a judgment may not be the end of the proceeding as parties could go back to court in the event that a party fails to act in accordance with the judgement given, thus there is continued judicial involvement. 

Thirdly, he asserts that ADR ousts the courts’ mandate to render an interpretation of the law. This is because individuals speak for themselves and are bound by self-generated rules. The law is an integral part of society because it not only brings order, but it also depicts the values that are closely held by a society. As society evolves, so does the law and this evolution is brought about by the interpretation that is rendered by judges in the traditional courts.

From the above, it is clear that the conception of justice that is adopted by adjudication proponents is one that views it as conformity with the law and more so a social process by which judges give meaning to public values. It is viewed as something that ought to be given by the government. However, the Socratic conception of justice widens the lens by which one views justice. The Socrates in the Republic defines justice as not the will of the stronger, not the efficiency of the government but what people discover when they walk together, listen to each other, and love one another.

Andrew McTheni, in his Article ‘For Reconciliation’, states that ADR is a process that not only rests on mutually reached agreements but on the values of religion and community which are closely held by the society. He opines that settlement is not an avoidance mechanism but a process of reconciliation in which the anger of broken relationships is confronted rather than avoided. It calls on substantive community values as opposed to reducing the social function to one of resolving disputes. ADR is therefore wholesome and restorative in nature as it not only focuses on the dispute at hand but the restoration of the relationships which are broken as a result of the dispute.

A case in point can be located in our own jurisprudence. The case R v Juliana Mwikali Kiteme & 3 Others (2017), aptly highlights the judiciary’s intent in promoting TDRMs. In this case, the accused persons were charged with the murder of one Musyoki Mwagani in Kitui. The accused pleaded not guilty to the charge and were subsequently released on bond as the prosecution did not have enough evidence to secure a conviction. They, however, remained in custody due to poverty. The prosecutor made an application to the court to discontinue the proceedings owing to reconciliation and payment of blood money under Kamba Customary law. The court thereafter proceeded to discontinue the proceedings owing to the provisions in Article 159(2) of the Constitution of Kenya.

The particulars of this case reinforce the conception of justice that is opined by Andrew McThenia in his article ‘For Reconciliation’. He states that justice is not something that the government gives but something that people give to each other. The court in this instance did not settle for less than the ideal but instead took cognisance of the resources that were available to the accused and ultimately sought to apply Article 159(2). Therefore, in as much as ADR achieves settlement between the parties, its wholesome nature ultimately leads to justice.

In another case R v Lenaas Lenchura (2011), the accused, a veteran of the second world war was charged with murder after stabbing and killing the deceased. In this case, the court took judicial notice of the fact that the quarrel was over access to water which was a scarce commodity in Samburu. The quarrel that arose was, therefore, a veritable life and death struggle. The learned judge in his judgement considered the accused’s advanced age and lifted the sentence that was earlier imposed. Instead, the accused was required to pay compensation of one female camel as dictated by their customs.

This case considered the social conditions that existed in the community and sought to repair the damage that resulted due to the quarrel as opposed to a deterrent sentence which was unsuitable due to the accused’s advanced age. Consequently, the case highlighted the fact that adjudication, as a way of dispensing justice cannot take a ‘one size fits all approach’. If applied in this way, then what would be achieved would not be termed as justice. What was suitable was the application of Article 159(2) which allowed the court to resort to TDRMs, ultimately achieving justice.

The 2010 Constitution was revolutionary with respect to the place of Alternative Dispute Resolution Measures in the Kenyan legal system by obligating judicial officers to be guided by and to promote its Article 159 principles. This was a deliberate attempt by the Kenyan people to change the conception of justice from one which can only be attained in court to one which we owe to one another when we agree and mend broken relationships that arise as a result of a dispute. Developing jurisprudence also shows the courts intend to promote these systems for two reasons: due to the infrastructural inadequacies of the formal justice system, and due to its restorative nature. This growing recognition requires among other imperatives, the protection of these methods to ensure consonance with Constitutional principles.

Private Mediation Agreements: Ordinary Contracts versus Section 59D of the Civil Procedure Act

By Wabia Nganatha Karugu

Private mediations are one of the two main forms of mediation in Kenya. Private mediation does not necessitate the involvement of the court. The parties to the conflict approach a mediator to mediate the dispute, such as through a private body, for instance, Strathmore Dispute Resolution Centre (SDRC). The second form of mediation is Court Annexed Mediation (CAM). According to The Judiciary’s guide on ‘Court Annexed Mediation’, CAM is ‘a mediation process conducted under the umbrella of the court’ and involves the screening of cases already filed in the High Court. The screening, done by the Mediation Deputy Registrar (MDR), is to determine whether cases should undergo mediation instead of the traditional court procedure. Private mediation does not necessitate a screening process as the parties themselves arrive at a decision to seek mediation. 

It is important that private mediation agreements (PMA) are binding, as it is one of its main selling points to persons seeking alternative dispute resolution (ADR) mechanisms. The binding essence of mediation is crucial for two key reasons. Firstly, this is attractive to persons involved in the mediation as they are assured that the party they are going head-to-head with will be bound to comply with the settlement they arrive at. Mediation hence will not appear like a frivolous form of dispute settlement. Secondly, the binding nature of the agreement is appealing to The Judiciary as a whole. Parties to a dispute find the binding nature of court decisions appealing, but with the alternative of a cheaper and less time-consuming form of dispute resolution, parties will opt for mediation instead. Mediation thus plays a key role in minimising the cases flooding into courts every day.

In Kenya, PMA’s binding principle is given legal backing through two means: ordinary contracts, and Section 59D of the Civil Procedure Act respectively.

Most persons enforce PMAs through ordinary contracts in Kenya. The same is true for a plethora of countries, such as India. Judge Mathews N. Nduma— in the 2012 Kenyan case of Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers— stated that the chief way that mediation settlement agreements are made enforceable is through ordinary contracts. This seems rather advantageous to the extent that ordinary contracts are easy to conclude. Like many cases before and after it, the 2017 case of Leo Investment Ltd v Estuarine Estate Ltd highlights that at the very foundation of a contract is its fundamental elements of offer, acceptance and consideration. The Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers case further highlighted that PMAs (albeit within the context of trade disputes) should be recorded in writing and signed by the conflicting parties and the mediator. The same is likely transposed to PMAs in general where parties wish to make them binding through an ordinary contract. Ordinary contracts are thus an easy alternative as their requirements are quite straightforward.

Section 59D of the Civil Procedure Act is the other way through which PMA’s binding essence receives legal backing. Section 59D provides that ‘all [private mediation] agreements entered into with the assistance of qualified mediators shall be in writing and may be registered and enforced by the court’. Not only is the PMA registered, but the court is empowered to enforce it; that is, to coerce parties to carry out their end of the bargain where they previously failed to. This Section is a practical realisation of the binding nature of PMAs. 

However, Section 59D is the less frequently used method of creating a binding PMA, as most persons enforce PMAs through ordinary contracts. The advantages of ordinary contracts were highlighted above. Yet, as stated by Judge Nduma, ordinary contracts are not without their flaws. An ordinary contract is an unsatisfactory means of enforcement as it ‘leaves the party precisely where it started in most cases, with a contract it is trying to enforce’. In other words, as simply stated by Jonathan Rodrigues, where PMAs remain an ordinary contract ‘a breach of the settlement agreement in private mediation cannot be resolved through a simple enforcement petition in the court of law…, but has to be dragged back to the corridors of the court, and initiated as a case of litigation’. Section 59D, to this extent, is the more efficient means parties should use due to the ease in which enforcement is possible. 

Notably, Section 59D is rather broad. Unfortunately, there exist no rules governing its implementation and thus an analysis of its intention is crucial.

There is no clear-cut procedure on how the written PMA must be registered and enforced by the court. Nonetheless, borrowing from Croatia’s law, Section 59D’s wording may mean that the PMA will be registered as a judgement within the court registry. Section 13(5) of the Croatian Mediation Act of 2011 provides that one such way a settlement agreement may be drawn up is through a court settlement. This is arguably in the scope of Section 59D considering that a court settlement involves parties coming to an agreement outside of court, and thereafter coming before the court in order to read the settlement into the official court record. Thereafter the court will approve the settlement, and enforce it as a judgement, resulting in the PMA ultimately being registered by the court. Owing to the fact that it has been registered and enforced as a judgement, the court thereby has the power to follow up where no observance of its terms takes place on the part of one or more of the parties involved through an enforcement petition. The United Kingdom (UK) also allows for parties to embody their PMA as a court judgement.

Alternatively, the PMA could be enforced just as a mediation agreement resulting from CAM is. The Judiciary requires that the latter agreement should be filed with the MDR, who will adopt and enforce it as a judgement or an order of the court. This is a viable option for Section 59D, whereby PMAs would be forwarded to the MDR for registration and enforcement as a judgement or an order of the court. Unlike the ‘Croatian model’ referred to above, parties would not need to go before the court. Instead, parties would go through the procedure highlighted under Section 14 of The Mediation (Pilot Project) Rules, 2015. 

Section 14(1) of The Mediation (Pilot Project) Rules, 2015 requires that a mediation agreement ought to be signed by the parties and filed by either of the parties with the MDR ‘within ten days of conclusion of mediation’. Section 10(2) continues to read that ‘any agreements filed with the [MDR] shall be adopted by the court and shall be enforceable as a judgment or order of court’. Court referred mediation in the UK is also enforceable as a court order (whilst PMAs are enforceable as court judgements). Thus, perhaps a practical option is for all mediation agreements, both PMAs and those arising from CAM, to be directed towards the procedure under Section 14 of The Mediation (Pilot Project) Rules, 2015. This option’s selling point is particularly the avoidance of a court appearance (which would be a waste of time for the parties and the court, as well as a waste of the court’s resources).

There is a concern of confidentiality when it comes to Section 59D. Mediation is prised for its confidential element; in that communications during the mediation process are never disclosed in court proceedings. Yet, as stated by Karin S. Hobbs, ‘this confidentiality protection will not apply where disclosure is necessary in order to implement or enforce a mediation settlement’. 

Ultimately, the challenges that will accompany Section 59D’s realisation are a worthwhile sacrifice. Section 59D will allow for the simple enforcement petition before a court, as opposed to lengthy case litigation that PMA’s as ordinary contracts result in. Section 59D is a marked gain in Kenya’s legal regime as far as mediation is concerned and is key in mediation’s popularity across the country due to its ease in enforcement.

ONLINE MEDIATION IN THE FACE OF COVID-19

By Malcolm Kibati

Editor’s note: You can now submit your disputes for online mediation through sdrc@strathmore.edu.

In a matter of weeks, the COVID-19 virus has escalated from being a bottom-corner news item and subject of a barrage of baseless fear-mongering WhatsApp chain messages to a global pandemic that has claimed thousands of lives – albeit still maintaining the often misleading chain messages. There has been a call by various international organisations, most notably the World Health Organisation (WHO) to slow the spread of this virus as much as possible by avoiding most, if not all, human contact –  known as social isolation – and further to avoid being outside of the home at all. Governments worldwide have heeded this call, encouraging businesses to close shop and employing measures such as curfews to further this purpose. Currently, time seems to have stood still for some; not being able to go to work or attend class means that life has come to a halt for an indefinite period of time.

However, the truth is that, for many, the privilege of remaining in stasis with the rest of the world and waiting out the pandemic is one that they cannot afford, and which will become even more expensive with time. Many service-providers have taken their services online, with restaurants taking orders online and performing doorstep delivery, and even supermarkets are fulfilling their customers’ daily needs using various delivery apps. The digital evolution has forced its way through the door of many markets out of sheer necessity. One might then ask whether this model can be extrapolated to the resolution of disputes that occur during this period. If one considers there to be a causal relationship between crisis and development, then it would be fitting to theorise that the COVID-19 pandemic would and should birth a new method – or, medium – of resolving disputes that takes into account the current state of affairs. Quite fortunately, there are already mechanisms in place that can take on this mantle.

Online mediation is exactly what it sounds like – the mediation process taken online. It forms a part of the larger global phenomenon known as online dispute resolution (ODR) which is slowly encroaching upon dispute resolution mechanisms the world over. This is for good reason, as it takes all the benefits of the internet and melds them with the already very flexible systems of ADR, creating a mechanism that boasts dispute resolution that can be faster, more affordable and overall more efficient.

Online mediation dates back to the late 1990s, when a pilot program was conducted in partnership with eBay by Katsh, Rifkin and Gattenby. The program involved the mediator utilizing the same skills and strategies that he would offline, but with email as the medium to communicate with the disputants. The program was indeed of adequate success to the team conducting it and lay the groundwork for subsequent online mediation programs. This became necessary at the time, as the 1990s were a period characterized by the expansion of e-commerce and the extension of the worldwide web into commercial transactions. Face-to-face meetings were becoming less of a plausible reality taking into account the considerable distance that parties would likely be from each other.

Albeit under different circumstances, physical meetings in the time of the COVID-19 pandemic are similarly impracticable. It is no secret that mediation is in many ways contingent on the physicality of its process; mediators have indeed had the option of conducting mediations online for the last thirty-or-so years, but face-to-face meetings have instead been opted for because they create an environment under which effective resolution of the matter can be achieved. This may even be attributed to the client preferring to be in the physical presence of the mediator in order to foster feelings of trust. Sad to say that this luxury of choice is one that can no longer be enjoyed by either mediators or their clients, and the current medical climate calls for the facilitation of mediation via online and virtual means.

Fortunately for mediators, the task – while requiring minimal technological proficiency – is not as daunting as many believe it to be. The technological advancements of today have allowed for there to be a multitude of mediums through which mediations can be carried out online, including, but not limited to, email communications, teleconferencing and videoconferencing. Zoom, in particular, is an especially popular video communications platform in the professional setting which allows for meetings to be held online through a virtual boardroom setting. The mediator can choose whichever platform best suits the needs of the client, highlighting the flexibility which is supposed to be the very cornerstone of mediation and ADR at large.

It goes without saying that the transition will involve some adjustment and growing pains; this is especially true for more experienced, less tech-savvy mediators. However, it is undeniable that this is a change that is well overdue. Perhaps this is the nudge into the deep-end that is globalisation that technology-resistant mediators need to adapt their practice to the times. Regardless of any apprehensions held by actors in the ADR sector, dispute resolution – unlike many other services – cannot remain suspended in time.  If the maxim “justice delayed is justice denied” is to be followed, the service of justice should not even be slowed down let alone halted completely. Let the mediators of today utilise the window of opportunity created by the ongoing crisis to evolve the mediation practice, ushering their clients to conflict resolution on the other side of COVID-19.

The Light in Her Eyes

By Nabwile Sifuna

Suit and tie, and as I have been doing for the past few months, I dressed sharply to boost my confidence and hide the shakiness. Who would dare think a young lass with an actual ‘male’ suit, tie and briefcase is even remotely shy? This would be my first day of the many in my judicial attachment. The day I would, so gladly, start applying all the concepts I had taken two years to wrap my head around. Most importantly, I would walk down the corridors of justice and be of help in dispensing this justice that had driven me to law school after great contemplation.

After taking almost three bus rides to Kibera Law Courts, I almost regretted having done the most. I undoubtedly stood out, but isn’t that exactly what I was going for from the get-go? Meeting my equally prepared classmates, I could see the passion in their eyes- a passion to get the most out of this experience. This would, you’d assume, be what we’ll be facing after finally graduating.

The days saw us remove our neatly pressed coats and put on dust coats as we ventured the depths of the registries. Quite often, I would need a handkerchief from the cold I was coming down with. Old files sat sadly over each other, looking hopeless from the lack of attention. Cases dating back to 2000 were present and seemed to be forgotten. A quick perusal surprised me at the nature of cases still being dealt with after so long. Cases ranging from sexual assault to traffic offenses. The fragileness of some would have me wonder why they were so deep into the archives.

A part of my soul sank a bit deeper with every passing day during this period. The glow I had when I was an enthusiastic first-year student could barely be noticeable. Every morning I would meet sad, frustrated and angry faces along the corridors. This is not to say that one would be surprised to be met by somber moods at the hospital corridors as well, but would you not wonder why the rooms that handed out justice had little to no life? Catching instances of people throwing their hands up in the air after trying to comprehend what a registry clerk had just explained for the fiftieth time was not rare. With less than twenty minutes to the deadline of filing some documents, I would see some advocates and pupils pushing and shoving in the queues, handing in incomplete documents and being impatient with the officers- just trying to barely survive. Was this what all the hard work and tears in school would boil down to?

Moving into the courtrooms under the supervision of a magistrate carried some hope with it. I would finally get to see all my theory and legislative knowledge being brought to life by the judicial officer. Having put extra attention on my dress code, I was slightly surprised to see the lackluster way that some advocates, and sometimes the prosecutor, dealt with their attire. Equipped with my pen, paper, brains and emotional intelligence, I sat right at the feet of the magistrate, ready to receive any overflowing grace and wisdom. After quite a number of mentions, I really wondered whether this is all I would be sitting through for the next one month.

Cases dragged on and on. The court diaries were full to the brim. Witnesses weren’t showing up. Police files never seemed to be available. The air reeked of hopelessness and desperation from all the stakeholders in the room. Some accused persons daringly cursed as they were pushed out of the court after trying to plead for a closer date of hearing only for one to be availed three months from then. Fights broke out a couple of times within the court grounds and I thank God for being at the right places at all times. Advocates insensitively tore down vulnerable witnesses such as children, seeing couples on opposite sides of the boxing rings with nothing but the desire to win a case being closely watched by their children, investigating officers who did the bare minimum at handling very crucial details… All this had me in my magistrate’s chambers on the last day of our judicial attachment.

“Are you happy with what you do?” I found myself asking her. I could not be imagining the long silence that followed that question. After what seemed like her having a replay of her entire journey in the legal profession, she said yes. That although the system was very slow and bureaucratic, she was happy because she always did her best… That sounded very cute, but I thought over it and really had no ounce of excitement about the idea of ending up there. One of our legal practice classes had seen us visiting law firms. Exhaustion, frustration and war spirit perfectly marinated in sophistication, legalese and top tier lifestyles. I mean, the later list looks inviting, but at what price, and for how long? Somewhere on my way up Maslow’s hierarchy of needs, I know I would be unwilling to pay those dues.

Receiving a call from reality, I realised how fast time was passing by. I started getting worried at how I was already halfway through my law degree with no zeal to practice what I had learned so far. In my confusion, an older friend of mine proposed I attend the 2019 International Mediation Conference that was hosted by the Strathmore Dispute Resolution Centre (SDRC). None of my excuses held enough water for her not to register me for the same and on

the 30th of May, I was seated in the university auditorium. “I can see the fire in your eyes. The fire of desire for justice” … That was retired honourable judge Ann Claire Williams. It felt like she was speaking directly to me, yet I could bet that the past six week’s interaction with this country’s version of access to justice said otherwise. My attention was caught and retained.

I would be lying if I said that that was my first encounter with the concept of Alternative Dispute Resolution (ADR) or mediation in particular. However, this was the first time I was looking at it not as an ‘alternative’ but as a dire need. Not only for my future career path and overall self-actualisation but for the very humanity and dignity dragged in the mud by the structural mishaps of almost an entire dependence on litigation as a form of dispute resolution in this country. The threat-filled statements, “I’ll sue you” and “see you in court” made me cringe a little bit every time I heard a layman- or anyone else for that matter- uttering them with so much conviction.

As the session proceeded and the judicial spokesperson of Rwanda- Justice Harrison Mutabazi-together with our very own Dr. Francis Kariuki spoke of the success of mediation in Rwanda and the community-based mediation respectively, my heart swelled at the entire concept. I thought over the shuddering and hostile atmosphere in the courtrooms- one winner one loser or two losers. Either way, bonds either worsened or broken. However, with mediation, the idea that it is a round table conversation with people putting on the same hats and being in control of the process ensured that not only do the parties get results that work for all of them but also that the bonds were mended and/or improved.

The then dean of the Strathmore Law school, Dr. Luis Franceschi, gave a word that made me aware of the subconscious bias I had developed through my judicial attachment: Stop reinventing the wheel, improve on it. With this, came the response I got from my magistrate and the Chief Justice’s speech on the current state of the judiciary. Much effort is being applied to deal with the bureaucracies and heal from the wounds caused by previous (and current, I’d argue) political influence in the machineries of access to justice. Judicial independence in theory and as probably envisioned by the 2010 Constitution of Kenya was a wonderful idea that as for now, remains in its budding stage. The problems that infested the litigation regime could be, to a significant level, be remedied by the acceptance and application of alternative dispute resolution.

Further venturing into the ideas of mediation and the use of artificial intelligence, my curiosity of all the possible solutions and ways to have this access to justice dispensed in the easiest and most efficient ways flooded my mind. Mr. Gerald Abila from Barefoot Law in Uganda gave his account of changing the narrative and working with the moving times. It might seem that the law is very slow to adapt to the fast-changing needs of the society- sentiments that I associate myself with. The constant jokes I had heard before of “advocates lying in Jeevanjee Gardens in their suits and ties because of no jobs and the flooding of the legal field” held no water at this point. The exploration of all the areas that are upcoming in the law, the continued rise in the preference for mediation and slowly but surely changing attitudes and public awareness of the law said the contrary.

Let’s just say that I sat eagerly in my first mediation class with the same or slightly more fire and ambition than I did in 2017. Knowing well the depths I would have to go through in litigation, the hurdles I would have to negotiate in mediation and the perfect hope of marrying all these ideas into the self-actualisation I would get from not only better corridors of justice, but also more round tables where relationships were repaired and strengthened in the shortest time possible and in the easiest of ways.

Artificial Intelligence and Alternative Dispute Resolution

By Wabia Nganatha Karugu

Artificial intelligence (AI) is the development of systems that have human-like intellectual processes. These processes include that of reasoning, deriving meaning, and learning from past experiences. An emerging issue is its possible relationship with the field of law. ‘Artificial intelligence’ has been the buzzword within scholarly works and news articles, following successful studies that prove the worth in fusing the two.

AI’s utility in law can be exemplified in Dr Nikolaos Aletras’ research study. Dr Aletras successfully proved that AI could ‘be used to prioritise cases most likely to involve human rights violations’. This was based on the AI system’s ability to envisage the finding of cases within the European Court of Human Rights. The system was astonishingly 79% accurate.

Such systems are useful within law’s narrower silos; including alternative dispute resolution (ADR). AI’s utility in this specific field will be exemplified below.

Similar to Dr Aletras’ research study, Benjamin Alarie (co-founder of Blue J Legal) notes technology’s ability to predict the verdict of a case. According to Alarie, this involves the system issuing the outcome of the case following lawyers answering questions about the matter-at-hand. Additionally, the system examines cases and legislation, in order to arrive at a nearly accurate prediction. This allows parties in a case to rationally choose ADR following a displeasing prediction of the court’s possible ruling.

Additionally, Marvin Huberman⸺ president of the Alternative Dispute Resolution Institute of Ontario⸺ posits that persons involved in an ADR matter may feel more at ease disclosing sensitive information with an artificial intelligence device, as opposed to an individual. This is owing to the fear of being judged by an actual human being, which is an inclination that an AI device would not have. This view is not implausible owing to a plethora of AI programmes that effectively identify and react to human emotion. One such example is Hanson Robotics’ creation: Sophia. Sophia was created in 2015 to build relations with people through social interaction. It is therefore not bizarre to predict a future that has AI that communicates to parties in an ADR case.

Moreover, William Horton notes that both ADR and litigation cases involve the reading of loads of documents. While litigation cases are often sprawled across many years, ADR matters are confined to a few days, weeks, or months. It is unlikely for ADR matters to stretch out to more than a year. This means that arbitrators, mediators, and any other personnel in an ADR case are forced to speed through heaps of documents. AI would be instrumental in perusing through large amounts of documents and siphoning relevant information that would be key in the matter for ADR personnel to focus on.

What must be explored henceforth is AIs viability to the practice of ADR in Kenya. As previously mentioned, Huberman postulated that persons involved in an ADR matter may feel more at ease disclosing sensitive information to an artificial intelligence device, for fear of being judged by an individual. The sole argument against this applying to Kenyans rests on Kenyans not being well-versed with technology; a notion that the author does not agree with.

According to the 2019 Kenya Population and House Census (KPHC), Kenya’s population is 47.5 million. The International Telecommunication Union (ITU) in 2019 reported that out of Kenya’s total population, there are 46.8 million internet users in Kenya. The Communications Authority of Kenya stated in 2018, that there were 46.6 million active mobile subscriptions in Kenya. Other indicators of Kenya’s technological prowess is evinced by GSMA Intelligence indication: in Kenya, four in five mobile phone owners utilise mobile money to receive and send money to friends, family, employees; as well as to pay bills. Moreover, the World Intellectual Property Organization (WIPO) ranked Kenya as the second leading innovation hub in Sub-Saharan Africa in 2019. Since Kenyans are evidently well-versed with technology, it would not be far reaching to argue that Huberman’s postulation may hold.

Horton provided that AI would be useful in going through large amounts of documents and siphoning relevant information that would be key in the matter for ADR personnel to focus on. This will ensure that ADR matters are concluded in a timely manner, allowing for more ADR matters to be carried out by an ADR Institute. The faster ADR matters are concluded, the more matters can seek the recourse of ADR as oppose to the formal court system. This could potentially be part of the solution to one of the court’s biggest plagues: case backlogs.

Technology indeed could bolster ADR, making it more efficient for all persons involved in the case.

Promoting the Practice of Traditional Dispute Resolution Mechanisms in Kenya

By Nyaga Dominic

According to Dr Francis Kariuki, traditional dispute resolution mechanisms (hereinafter ‘TDRMs’) are methods that local communities have applied in managing disputes since time immemorial and have been passed from one generation to another. For a very long time now, they have been hailed for being cheaper, faster, less procedural, informal, flexible and less time-consuming. Sheikh Ahmed Set (HSC), relying on the lessons from the Rwandan community-based gacaca courts strongly advocates for TDRMs as a very efficient way of solving disputes and expeditiously dispensing justice.

Among more than one Million Tutsis that were killed in a span of 100 days in the 1994 Rwandan genocide were judges and other key judicial officers. With the destruction of critical judicial infrastructure at the time, the wheels of justice ground slower and it took longer to bring the alleged criminals to book. After the genocide came to an end, the Rwandan prisons were filled to the brim. In fact, by 1998, around 13, 000 prisoners occupied the prison spaces. The prison spaces were not adequate for this humongous number of prisoners. As days passed on, the number of alleged criminals increased, and the Rwanda Patriotic Front (RPF) knew that there was an urgent need to forge a new approach that would address the undesirable state of affairs. It is on this vein that the Customary gacaca courts model was introduced in a bid to speed resolution of cases by elders. Besides the challenges and formalities that riddle the gacaca model, since the year 2005, over 12,000 such courts have tried an estimate of 1.2 million cases in Rwanda thus heralding the critical place of TDRMs in the justice system. 

Kenya National Council of Elders Chairman Mr Phares Ruteere (OGW) agrees with the pertinent role that elders and traditional courts play in the society with regards to solving disputes and reducing huge case backlogs in the courts. Furthermore, he believes that the place of traditional courts, as a consequence of formal laws and relegation of elders to the lowest echelons in the ladder of justice, continues to subject TDRMs to extreme aversion. Given the history and set up of traditional African societies, TDRMs should be a general rule and first site of resort rather on matters justice rather than an exception. Kenyan communities, like most communities around the world that were subjected to colonial rule, were guided by TDRMs even before the advent of the colonialism. With no formal laws and courts at the time, the African communities resorted to TDRMs to redress injustices to the afflicted persons in the society. Social cohesion was obtained through custom and consensus, not only within families but within clans and, as far as possible, between clans. The groups relied largely on traditional precedent in solving disputes which led to peace, unity, and reconciliation within the community.

The colonial epoch in Kenya marked the weakening of African customs. Professor HWO Okoth Ogendo rightly argues that during this time, TDRMs and customary law, in general, underwent through a long period of expropriation, suppression and subversion. Over the years, TDRMs have been belittled and continues to be subjugated to formal laws. Currently, the Kenyan courts are guided by African customary law so far as it is applicable and ‘is not repugnant to justice and morality or inconsistent with any written law.’

Of worth to note is that TDRMs are now formally entrenched in the Kenyan jurisdiction in light of the constitutional dispensation of 2010 and various Statutes such as Magistrates’ Court Act No. 26 of 2015, National Cohesion and Integration Act No. 12 of 2008, Criminal Procedure Code (Act No. 12 of 2012). Further, in exercising judicial authority, courts and tribunals are to be guided by inter alia TDRMs. These provisions allude to the fact that customary law forms part of the law of Kenya, and since TDRMs are embedded in the customs and practices of communities in Kenya, they form part of the customary law of those communities and are applicable in settling disputes.

Despite formal recognition coupled with a constitutional mandate for promotion of TDRMs, difficulties still arise as to the practicability of the application of these mechanisms. For instance, TDRMs remain uncodified. Difficulties, therefore, arise for courts to subject TDRMs to the Constitutional standards set out in Article 159(3) especially when parties are required to present evidence of the existence of certain doctrines undergirded by TDRMs. Lack of codification, precedents and guidelines on TDRMs act as an impediment to access justice especially when a judge prefers to use formal laws due to inadequate jurisprudence on TDRMs.

Furthermore, a judge does not necessarily originate from a traditional community whose case he/she is presiding over. Often, judicial officers borrow models from other areas and use them as standards to evaluate customary laws or TDRMs. This approach leads to injustice and subjugation of customs. Consequently, the position goes contrary to the rationale for the recognition of TDRMs in Kenya as the need to promote access to justice, and respect of the diverse cultures of Kenyan communities. This, therefore, calls for a need to develop a jurisdiction that not only promotes TDRMs but also guides judges towards applicability and implementation of TDRMs.

To this effect, the author proposes Courts with an adopted elders jury system. All cases that are presided over by the elders shall not be stripped of their informality and gowned with the monotonous and usually unnecessary formality. Cases that cannot be handled by elders and demand the attention of the courts are the ones that will demand elders to sit in through the proceedings as members of the jury. In addition to the judge who is an expert in written laws of the land, 2, 4, 6 or 8 elders shall join the court to advise accordingly on matters touching customs and the culture to which the case is related to. For instance, it is agreeable that land cases involving historical boundaries cannot be decided solely by judges without the indulgence of the elders who constitute the highest socio-political institution in many societies. As such, there full-time presence in courts (not invited only as witnesses) will play a critical role in a just determination of cases informed not only by the law but also by the customary norms and an understanding of the nature of the societal disputes.

Further, to render TDRMs substantively applicable in the Kenyan jurisdiction, there is a need to introduce registration of all decisions settled by TDRMs. Although customary laws are dynamic and can change according to new trends and social norms, the function of codification will be to unify the customary law and enhance the chances of reliance on principles of customary law in solving disputes.  African customary law is critical in adjudicating disputes within traditional disputes. Codification and provision of guidelines will govern dispute resolution in a modern ‘customary’ dispute resolution forum thus achieving the said rationale of TDRMs: expeditious and efficient access to justice, and promotion of TDRMs pursuant to Section 159(2)(c) of the 2010 Kenyan Constitution.