A CASE FOR MEDIATION AND ARBITRATION
The Constitution of Kenya under Article 159 encourages use of alternative forms of dispute resolution including reconciliation, Mediation, Arbitration and traditional dispute resolution mechanisms. Mediation and Arbitration are convenient and popular methods to resolve a dispute. In Mediation, two people in opposition to each other are able to work out their differences themselves, with the help of a neutral third person (Mediator).
In Arbitration, an Arbitrator listens to both sides of an argument, and then makes a decision for the disputing people. Both methods are private and confidential. (Mediation demands the active involvement of both “parties” (the two sides having a dispute)).
When a Party chooses to Mediation, no one makes a decision for them. The party in tandem with the opponent must come to an agreement that satisfies both. There is no guarantee of success in Mediation. However, the process generally helps in that both parties leave Mediation with a common solution – even if they’ve been in conflict for months! Parties also retain their relationship as the solution is win-win often.
Arbitration is especially useful when both parties want to end their dispute, through a third party. It Is a Private Court. They agree to trust an experienced, neutral third party to hear their argument and make a fair decision about what to do. This is normally provided for in the contract. When you agree to Arbitration, both Parties are promising to end the dispute with whatever solution the arbitrator(s) decide upon. Mediation follows the following steps, You (the petitioner) will write a short statement of the problem you experienced; this becomes part of your claim. Be specific and rely on facts that support your case. The opposing side (the respondent) will do the same.
The mediator will read both of your statements before the Mediation session. At the Mediation session both you and the respondent state your cases again. This gives everyone a chance to hear both sides. Typically, the mediator may then meet privately with each party to explore more fully the facts and issues of each side, this is referred to as a caucus. The mediator controls the negotiation and ensures there is no use of insulting or accusatory language.
The caucus allows the parties to say “what’s really on their minds”: they can vent their frustration without the other side hearing them. The Mediator helps people get to the heart of the problem. Most disputes arise from deeper emotions than facts, he or she can help sort out what went wrong, clear up misunderstandings and show people where they actually agree. The Mediator may go back and forth several times between the parties, obtaining compromises that bring them closer together.
If an agreement is reached, it is written out and signed by both parties and the mediator. After signing the written agreement, it is a legally binding contract and both parties must abide by its terms. If no agreement is reached, the parties may end the process or proceed to binding Arbitration.
Arbitration follows the following steps, you (the petitioner) will write a short statement of the problem you experienced; this becomes part of your Petition. Be specific and rely on facts that support your case and provide. The opposing side (the respondent) will do the same. A panel of neutral arbitrators will read both of your statements before the hearing. At the Arbitration hearing both you and the respondent will state your cases again.
This gives everyone a chance to hear both sides. The Arbitration panel is free to ask questions of you and the respondent. They try to understand exactly what happened by listening closely to both sides of the story, and putting together the “whole picture.”
At the end of the questioning, the hearing concluded. The panel of Arbiters discusses your case in private. They come to a final decision. The chair of the Arbitration panel writes the decision and releases the communiqué to the parties.
Given this brief description of Mediation and Arbitration, is this a good alternative to litigation? Which method will best help you to resolve your dispute? Comment and ask any queries in the comment section.