Last week North American mediation came to Nairobi, the Weinstein International Foundation (WIF) holding an international mediation conference at Strathmore University in conjunction with the Strathmore Dispute Resolution Centre.
WIF is headed by retired US Judge Hon. Daniel Weinstein and together with top US dispute resolution provider JAMS, has created a global network of International Fellows, aimed at promoting mediation education and training around the world. There are now 19 African Fellows (with one from Kenya imminent) giving WIF a direct interest in the development of mediation all over the continent.
Given the US’s status as surely the most developed mediation market in the world, this was going to be a valuable opportunity to ‘compare notes’. Attendance was by invitation only with perhaps 170 delegates from Kenya, Nigeria, Zambia, Somalia, Uganda, Tanzania, Rwanda and other mainly East African countries. The Agenda covered topics from Community based mediation, to plea bargaining and mediation in a criminal law context, to complex commercial disputes and mediation experience in Rwanda, Nigeria and Zambia.
Lawyers are the Problem
What then did we learn at this gathering of esteemed mediation experts? Perhaps the enduring theme from day one was lawyers and the difficulty of persuading them to support ADR which they see as Accelerated Decline in Revenue! To be very sure, the ‘lawyer problem’ in establishing mediation is very far from unique to Kenya. To solve this problem there is clearly no silver bullet – rather a long list of actions required from mediators, judges, court administrators, legislators et all, in order to arrive at a time when lawyers are the principal engagers of mediators rather than their leading foe.
Judge Danny (as he is known) pointed out that in the US at least, the fact that insurance companies were often picking up the bill for litigation played no small part in the drive to adopt a cheaper way of resolving disputes.
Clearly, by embracing mediation to resolve disputes quickly, lawyers may generate less revenue per client, but they also stand to attract many more clients. On a personal note, I would add that there is a frankly enormous pool of disputes which never reach a lawyer because the disputants cannot afford to expose themselves to the potential litigation costs were they to lose. With a mediation dispute resolution model, these cases all become potential new revenue for the legal industry.
Then there is the ‘dog’ or ‘chihuahua’ cases – case files in lawyers’ filling systems that no-one wants to open any more for fear of getting bitten! Lawyers may be very pleased if a mediator could help them close these files.
From Italy we heard of mediation being used to prevent disputes arising in the first place. Leo D’Urso relayed how he had worked with the various contracting and sub-contracting parties involved in a large construction project to make sure that they kept their interests aligned and stop the inevitable disputes and litigation that such projects spawn. The project came in on time and under budget and with NO resulting litigation.
On Friday, the conference was addressed by Noordin Haji, Kenyan Director of Public Prosecutions, who reflected that the Criminal Procedure Code has allowed for plea bargaining in criminal cases since 2008, although in practice no procedures for doing so have ever been developed. This is set to change soon and as a plea bargain is in effect a Defendant – Prosecutor negotiation, new opportunities for Kenyan mediators look likely to open up.
The DPP ruled out plea bargains in cases of murder and defilement, but his deputy went on to suggest otherwise, extolling the need for more refined charging and sentence options in unlawful killing cases (first degree murder, second degree etc) in order to make meaningful plea bargains possible. For lesser offences, there seemed to be wide consensus that plea bargaining could make a very positive difference to a system that has criminal suspects held on remand for up to four years. We heard that 92% of Kenyan criminal defendants are un-represented which rather put into context US Ambassador to Kenya, Kyle McCarter’s firm assertion that plea bargaining could only be effective if all defendants entitled to legal aid are represented by counsel.
The panel discussion on Community-Based Mediation emphasised not just the relative irrelevance of the formal civil justice system to a large number of Kenyans but also the enormous social justice benefits to be derived from effective community mediation. Frequently everyday disputes suck in and impact on multiple parties and lead to unhappiness, poverty, community tensions, violence and other crime. By diffusing these disputes, the benefits spread far wider than the principal disputants.
Neary all the questions that followed this panel were for some reason directed at Teresa Omondi-Adeitan, the Executive Director of The Federation of Women Lawyers (FIDA), the audience wanting to understand more about how FIDA has been able to so successfully establish its mediation process in family disputes, and how it has done so largely without the involvement of lawyers.
Notably, given the current debate in Kenya around regulation of mediators and mediation, there was nothing on the conference agenda covering this topic. However, in the last session on the agenda, ‘Going Forward/Lessons Learned’, the topic was broached, albeit with no real debate about how this will unfold in Kenya nor how it has been tackled in other African Countries. My question from the floor on the matter (and in particular why mediation is to be lumped in with ‘ADR’ for the purposes of legislation) may have been garbled, overly long or too confrontational, but in any case it was studiously ignored by all. Perhaps the key existential factor for mediation in all countries, left in the shadows. A missed opportunity.
Overall a stimulating and enjoyable event and a great opportunity to meet mediation stakeholders from Kenya, East Africa and elsewhere.