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.