Alternative Dispute Resolution in Kenya: Mediation

Mediation is a non-binding process in which an impartial third party facilitates the negotiations process between the disputants and it is that impartial third party who is called the mediator.  The mediator has no decision making power, he has no decision making power and the parties maintain the control over the substantive outcome of the mediation.

However, the mediator with the assistance of the parties will control the process and he will with the consent of the parties set and enforce the ground rules for the mediation process.  If in the dispute the two examples that we have looked at we now bring in a third party as the mediator, he will probably get an overview from both parties as to what their contentions are.  He will then agree with the parties that each party will be given an opportunity to state their case, they could also agree that when one party is stating their case, the other party shall not interrupt.  The role of the mediator is not to impose his own solutions and not to even suggest solutions but that the solutions should be suggested and agreed upon by the parties themselves.

Story telling - the disputants communicate with the mediator to tell their story.  The mediator then assures them that he has heard the story by re stating what each party has told you and letting them state whether those are the facts as they have stated them.  You re narrate the story.  You may then ask them to suggest the way forward and both parties can state how they want to proceed.  Lay down the rules.

The mediator should not descend to the arena but should let the disputants decide how to conduct the negotiations.  

ARBITRATION AND MEDIATION

Arbitration is a process in which a third party neutral, or an odd number panel of neutrals render a decision based on the merits of the case.  The Hybrid of mediation or the hybrid between mediation and arbitration which is a very rare sort of scenario is that the third party neutral commences the process in the role of a mediator and if that does not yield or result in a resolutions the mediation ceases and the mediator assumes or becomes an arbitrator who then makes a binding decision.  In the arbitration mediation hybrid (arbmed) the disputants present their respective cases to the third party neutral who prepares or makes a decision, he does not however share that decision or release that decision to the parties but he keeps it away and then assumes the role of a mediator.  If a result of the mediation, the parties reach a resolution, he destroys his decision but if the mediation does not resolve in a resolution then he releases his decision to the parties.