WEEK NINE

MEDIATION

Definition of Mediation
Mediation is a structured negotiation process in which an impartial third party,
the mediator, assists disputing parties in reaching a mutually acceptable
agreement. It is a voluntary, confidential, and non-binding process where the
mediator facilitates communication and negotiation between the parties to help
them find a resolution to their dispute.
The mediator guides the process but has no authority to impose decisions,
instead helping parties explore interests, generate options, and evaluate
potential solutions. In contrast, arbitration is more formal, where an arbitrator
acts as a private judge, hearing evidence and making a binding decision.
Litigation on the other hand, is the most formal process, occurring in public
courts with strict procedural rules and a judge/jury determining the outcome.
While a mediator facilitates dialogue and helps parties find common ground, an
advocate argues for one party's position, and an arbitrator makes final decisions
like a judge. All three methods aim to resolve disputes, but they differ in
formality, party control, and the neutrality of the third party involved - with
mediation being the most collaborative and flexible, arbitration being more
structured but private, and litigation being the most formal and public.
Features/Characteristics/Principles of Mediation
1. Voluntariness: Mediation is a voluntary process where the parties have the
right to participate, withdraw, or settle on their own terms. (Explore uniqueness
of court-annexed mediation).
2. Impartiality: The mediator must remain neutral and unbiased throughout the
process, without favoring any of the parties.
3. Confidentiality: The discussions and information shared during the mediation
process are generally kept confidential and cannot be used in other legal
proceedings.
4. Self-Determination: The parties have control over the outcome and the
mediator does not impose a decision on them.
5. Flexibility: Mediation can be adapted to suit the specific needs and
circumstances of the dispute.
6. Informality: Mediation is typically less formal than court proceedings, allowing
for more open communication.
Forms of Mediation
1. Mediation in the Political Process: Mediation can be used to resolve political
conflicts and disputes between governments, political parties, or other
stakeholders.
2. Mediation in the Legal Process: Mediation is increasingly being used as an
alternative dispute resolution (ADR) mechanism to settle legal disputes, either
before or during court proceedings.

Laying Groundwork for Effective Mediation

1. Preparation: Both parties should prepare by gathering relevant information,
identifying their interests and goals, and considering potential options for
resolution.
2. Agreement to Mediate: The parties should sign a mediation agreement that
outlines the terms, process, and confidentiality of the mediation.
3. Selection of the Mediator: The parties should agree on a qualified and
experienced mediator who is acceptable to both sides.

Mediator Attributes, Skills, and Roles

1. Attributes: The mediator should possess qualities such as impartiality,
patience, empathy, and strong communication skills.
2. Skills: The mediator should be skilled in active listening, problem-solving,
negotiation, and conflict resolution.
3. Roles: The mediator's primary roles include facilitating communication,
identifying underlying interests, generating options, and guiding the parties
towards a mutually acceptable agreement.

The stages of the mediation process, purpose of each stage, and tasks of each
stage - what physically/logistically is being done/accomplished at each stage

1. Pre-Mediation Stage
Purpose:
- Assess suitability of case for mediation
- Prepare parties and mediator
- Establish logistics and framework

Tasks:
- Initial contact with parties/representatives
- Gather basic case information
- Send out agreements/paperwork
- Arrange venue/timing
- Brief parties on process
- Handle pre-mediation questions
- Review submitted documents
- Check authority to settle
- Plan room arrangements

2. Opening Stage/Introduction
Purpose:
- Set tone and build rapport
- Establish process clarity
- Create safe environment
- Build confidence in process

Tasks:
- Welcome parties
- Make introductions
- Explain mediator's role
- Cover ground rules
- Explain confidentiality
- Outline process steps
- Check understanding
- Sign agreements
- Address questions
- Set agenda format

3. Statement/Story Stage
Purpose:
- Allow parties to be heard
- Share perspectives
- Identify issues
- Begin information exchange

Tasks:
- Manage speaking order
- Guide initial statements
- Take notes
- Observe body language
- Manage emotions
- Acknowledge feelings
- Summarize key points
- List emerging issues
- Begin issue identification
- Use active listening techniques

4. Issue Identification/Agenda Setting

Purpose:
- Clarify what needs resolving
- Prioritize discussion topics
- Create structured framework
- Move from past to future

Tasks:
- List all issues raised
- Group related issues
- Prioritize issues
- Create agenda
- Get agreement on topics
- Write up visible agenda
- Identify common ground
- Note areas of disagreement
- Plan discussion sequence

5. Exploration Stage
Purpose:
- Deeper understanding of issues
- Uncover underlying interests
- Generate information
- Move beyond positions

Tasks:
- Ask probing questions
- Use private sessions if needed
- Draw out interests
- Challenge assumptions
- Reality test
- Manage emotions
- Take detailed notes
- Summarize progress
- Track emerging options
- Identify barriers

6. Option Generation
Purpose:
- Create possible solutions
- Expand thinking
- Move to problem-solving
- Build momentum

Tasks:
- Brainstorm ideas
- List all options
- Use whiteboard/flip chart
- Encourage creativity
- Prevent premature evaluation
- Build on suggestions
- Note areas of agreement
- Combine ideas
- Test feasibility
- Review against interests

7. Negotiation/Bargaining
Purpose:
- Evaluate options
- Work toward agreement
- Find acceptable solutions
- Bridge differences

Tasks:
- Assess options
- Reality test proposals
- Use private sessions
- Handle offers/counteroffers
- Track progress
- Document discussions
- Manage impasses
- Check authority
- Test willingness
- Build agreement pieces

8. Agreement Stage
Purpose:
- Finalize settlement
- Ensure clarity
- Create implementation plan
- Confirm commitment

Tasks:
- Draft agreement points
- Review details
- Check understanding
- Include timelines
- Specify actions needed
- Address contingencies
- Get signatures if needed
- Plan next steps
- Arrange follow-up
- Document outcomes

9. Closure Stage
Purpose:
- End process properly
- Ensure completion
- Maintain goodwill
- Set future framework

Tasks:
- Summarize agreements
- Review next steps
- Thank parties
- Handle paperwork
- Schedule follow-up
- Provide copies
- Give contact details
- Close formally
- Pack up/restore room
- Complete file notes.

Merits and Demerits of Mediation

Merits:
1. Cost-effective: Mediation is generally less expensive than litigation.
2. Time-efficient: Mediation can resolve disputes more quickly than court
proceedings.
3. Preserves relationships: Mediation focuses on finding a mutually beneficial
solution, which can help maintain ongoing relationships.
4. Flexibility: Mediation allows for creative and tailored solutions that may not
be available through the courts.

Demerits:
1. Lack of enforceability: The mediated agreement is not legally binding and may
be difficult to enforce, unless it is filed and adopted as a court order.
2. Power imbalances: Mediation may not be suitable in cases where there is a
significant power imbalance between the parties.
3. Limitation of legal rights: Parties may feel that they have sacrificed some of
their legal rights in order to reach a settlement.

The case law on mediation in Kenya includes the Universal Satspace v Gov of
Kenya [2013] EWHC 4609 QB case, which highlights the importance of the
court's role in enforcing mediated agreements and ensuring that the mediation
process is fair and just.