Kenya Mediation Blog

Welcome to my new Kenya Mediation Blog.

I try to get around the mediation space in Kenya (well in Nairobi at least) and whilst I of course want to build my own mediation practice, I’m also rather passionate about having a hand in ensuring that Kenyan mediation grows and prospers in a way that benefits us all.

So, I thought maybe, it would be a good thing if I were to regularly share what I learn and the insights that I gain.

This week I attended the Kenya Institute of Public Policy Research and Analysis (KIPPRA) workshop meeting on developing Inclusive Business.  Why?  Well apart from the damn good value of making sure that mediators are visible in ANY business forum, it gave me the opportunity to get up close and personal to the process of turning a broad idea or concept into effective law.  I have to say that KIPPRA seems to be an impressive organisation – doing thorough research and diligent analysis to try to ensure that Government doesn’t make laws based on assumptions that turn out to be wrong.  And digging deep into issues to try to find out accurately what is happening on the ground.

One note of caution.  What is supposed to happen is that research and analysis leads to a preferred result in terms of policy and legislation.  Is it possible that things happen the other way round?  That researchers and analysts (never mind politicians and civil servants) use research and analysis simply to reinforce the conclusions that they have already come to?  Undertaking this kind of research is not simple and many decisions have to be taken along the way as to how to conduct it (what questions to ask; what alternatives to suggest; etc).  Can we be sure that the researcher’s own position (or that of whomever is paying them) does not influence how the research is conducted?

Will KIPPRA soon be focussing its microscopes on the mediation of disputes?  Given the growing talk around regulation of mediation and mediators it’s a definite possibility.  I am pretty nervous about what might be at the end of that road.

Of course mediators want to be seen as professionals on the same level as lawyers, doctors and accountants (although to be fair the qualification regimes are very different).  It is therefore very easy to buy into the notion that a Mediation Act is the way to give us that status.  But shouldn’t we also consider the possible downsides of becoming regulated by the state?

My previous experience is from the UK where mediation thrives despite there being no Mediation Act.  Rather, government has left the area alone in the knowledge that the Civil Mediation Council provides effective self-regulation.  In fact, self-regulation has become a very successful mechanism in numerous trades and industries.  No surprise that is a concept that appeals to me.

But I am new here and Kenya is not the UK.  I have heard many very good arguments for the benefits of state regulation.  My real worry is that Kenyan mediators ‘sleep-walk’ into a state regulated environment, not because it is the right thing to do, but just because regulation is the norm.

I am very happy to be shot down – I might learn something, but here are my warning bells:

• Getting regulated is going to take time – possibly many years.  (I am told that the Counsellors and Psychologists started in 2005 and have still not finished ironing out the wrinkles). That could be a bit like saying to our potential customers “you just carry on litigating whilst we get ready to practice – we’ll let you know when we are ready to mediate”.

• Mediators in dispute about how the profession should be regulated is not a good look.  Quite properly state regulation will involve consultation with the industry.  What is the chance that the various industry players and voices are going to disagree?  Public consultation is public and an industry of people purporting to be able to facilitate resolution of disputes, visiblyy failing to agree how their profession is regulated is not going to inspire faith in mediation in Kenya.

• Unintended results of legislation may stifle the freedom of mediation to grow and develop according to the needs of society.  No matter how well thought through, all sets of rules try to cater to a whole range of different situations.  Nothing will ever be perfect and there will be unintended consequences.  What for example will be the consequences of legislation for traditional / community mediation currently being successfully undertaken by Chiefs and Village Elders? 

• How sure are we that the rules and regulations that we end up with will be to the benefit of the mediation profession?  No disrespect to parliamentarians but do we really trust them to make the right decisions?  For example, following other professions it may seem to the uninitiated that mediators need to prove their competence with examinations.  But any mediator knows that the skills required to successfully mediate cannot be assessed in a written exam – you could score 100% and still be unable to mediate effectively.  Will parliamentarians have sufficient understanding of mediation?

In any case, a significant number of National Assembly Members are lawyers by profession and don’t we all spend a great deal of time agreeing that many lawyers are an obstacle to the growth of mediation not the solution?

Right now I feel that a non-statuary Mediation Authority, under the control of practicing mediators, would be the optimal solution.

Mediators would join and register with the Authority because users of mediation would be more likely to choose to hire such registered mediators.  The Authority would create dynamic and flexible rules for the practice of mediation and it would have teeth because its own disciplinary panel would have the power to cancel registration in the case of failure to abide by the rules.

If we prefer the state regulation model, my fear, as a worse case scenario, is that the patient may die during surgery!