Mediation is right for dismantling excessive litigation, but lawyers must accept it

The mixture of imprudent judges, uninformed judgments and corrupt systems is a lethal recipe. If we add the ingredients of negligent prosecutors and selfish and vindictive legislators, we have a perfect poisonous meal.

Sooner rather than later, all stakeholders involved in sustaining and safeguarding the rule of law must come to terms with the fact that our country’s governance systems could soon hit rock bottom.

The recent NYS scandal season II, where only the small fish have landed (provisionally) in jail; the Ruaraka land saga, which is one and a half times bigger than NYS; and the Kenya Pipeline Company scandal, which is calculated to be 70 times bigger than NYS, put us at a different level of corruption and impunity.

The magnitude of theft is overwhelming, and when we turn to look at “blind lady justice”, she is swamped and exhausted with thousands of little and perhaps socially irrelevant cases that should not have ended up in court.

There is a general perception that a huge percentage of cases (nobody knows the exact figures) clogging our court system should have been settled outside the courtroom.

LITIGIOUS INCOME

Corruption cases, big scandals and big disputes should be in court, not the myriad of misunderstandings that can be settled out of court by lawyers who care more about justice than their ‘litigious’ income.

As I mentioned some weeks ago, mediation should be a quick fit, the right recipe to dismantle excessive and superfluous litigation. The Mediation Accreditation Committee (MAC) is doing a commendable job in this regard. With the full support of the Chief Justice and court users, the MAC put in motion the Court Annexed Mediation Project (CAMP).

One of the most experienced mediators in Kenya is Anthony Gross, a successful and esteemed advocate. Gross pioneered a dispute resolution centre in 1994, when nobody else in Kenya was talking, discussing or even dreaming of mediation as a respected way to resolve disputes in Kenya.

I met Gross in 1996, at Satima in Parklands. He spoke enthusiastically about mediation and kept preaching this gospel wherever he went. His dream was easy, efficient and affordable dispute resolution mechanisms for all.

Gross has kept on, and despite many years of opposition and neglect by lawyers and judicial officers who saw mediation as a threat to their income, or to the administration of justice as an exclusive function, mediation has finally found its way into the 2010 Constitution.

Gross has been a great supporter of the Dispute Resolution Centre we set up some years ago at the Law School.

KEY SHORTCOMINGS

In a recent conversation, he pointed out to me some key shortcomings in the mediation rules that were established to guide the work of the Court Annexed Mediation Project.

The first pitfall is that the screening process of cases concentrated on new cases being filed. On the contrary, Gross maintains – and it makes sense – that the screening should have focused on cases that have been in court for at least three years, which are clogging the system, and where justice delayed is already a burden on the parties, the justice system and society at large.

Secondly, the current rules provide for the parties to choose one out of three proposed mediators. Although mediation is a consensual process, the Court Annexed Mediation is mandatory, so this provision seems unnecessary. The mediators are accredited by the Judiciary and the registry should nominate without fear or favour. As of now, there seems to be little transparency on how mediators are appointed.

Third, the timelines seem too long. Issues of justice are rather urgent. We could have been more demanding with ourselves. We should not forget that in our public service we have the bad habit of making money through sitting allowances, so the longer the process the more expensive, unviable and unsustainable it becomes.

EXCLUDING LAWYERS

The fourth pitfall is highly contentious. Even though Gross is a lawyer, he thinks lawyers should be excluded from the mediation process. This could elicit the enmity of my colleagues. The crux of the matter is that lawyers need to understand that mediation is not a ‘legalistic’ process. Evidence is of little interest to any good mediator, and litigation tactics actually jeopardise any chance of success.

A good mediator is an artist, a psychologist who brings together the wills of the two opposing parties. Mediation is the art of matching expectations and ambitions.

A good mediator is also a matchmaker, not of marriages, but of broken relationships. It is not just a monetary process; it is an emotional, affective and effective process.

The fifth challenge relates to the fact that the mediator is guided by case summaries that parody the pleadings and state legal positions. It would seem more productive and effective to set the mediation mood by going for a simple and factual statement of issues.

UNNECESSARY CLUTTER

The sixth pitfall is at the registry. The contacts provided to the mediators are those of the lawyers. It seems quite hard to bring the actual principals to the table, and this is essential for mediation. Additionally, there are no sanctions for default or non-compliance.

All in all, a great initiative has been set in motion. A lot of good work has been done and the Committee’s professionalism is admirable. However, the Committee’s work will be quite limited for as long as lawyers do not understand the benefits of mediation and agree to support it for the greater good, for justice.

We hope the Court Annexed Mediation Project will successfully relieve our courts from unnecessary clutter. Surely, a more agile and efficient Judiciary will be an important deterrent for any aspiring mega-thief.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi