Allan Wang’ang’a’s piece on the Strathmore Dispute Resolution Centre’s blog, on the regulation of mediation in Kenya delighted me and alarmed me in equal measure.
I was delighted to find that someone is actively thinking about the issues involved. Too many people whom I meet in the mediation space seem a bit like students just waiting for the headmaster to tell them what the new school rules are going to be – without any sense that they have a stake in the argument.
However, the alarm bells were ringing because whilst the piece presented a neatly expounded theory of regulation, detailing the various forms of regulation, from market forces to legislation, it did not really come to any clear conclusion as to the over legislated route that Kenyan mediation may be about to take.
I am grateful for Mr Wang’ang’a leading me to Nadja Alexander’s very fine 2005 article ‘Mediation and the Art of Regulation’ which excellently defines the parameters for regulation of mediation and draws on the experiences (at that date) of a number of jurisdictions. This piece should be mandatory reading for all would be regulators of mediation in Kenya and allows one to fully appreciate the problems which the Government’s proposed ADR Act could lead to. But to the less questioning reader of Mr Wang’ang’a’s piece, it would be too easy to detect a full thumbs up to the current plans.
This would be a great shame, because I believe that the debate about exactly how to regulate mediation in Kenya is one that we really need to have. As a relatively new arrival in the Country, I am struck by the degree to which Kenyans tend to the view that it is the State’s responsibility to legislate everything and that nothing is ‘real’ until laws have been passed to control it. (As an Englishman I am well aware of the irony of my critique given that this characteristic presumably emerged almost wholly out of the colonial experience).
But perhaps there is something special, or distinct about mediation which means that just turning it into another creature of statute will not lead to the best outcomes. Isn’t mediation’s strength that it is not overly formal; that it is private and controlled by the parties; that it is not a function of the state? I am not advocating NO regulation (and as we shall see, that is not even a possibility) just that there are other, possibly much more effective ways of regulating the space, than through the straight jacket of primary legislation.
The Consumer Protection Argument
I was also concerned that Mr Wang’ang’a’s piece seemed to gloss over some rather fundamental propositions in this debate, presenting his theses as concluded arguments in a way that might just be selling the conversation short. His headings in Part Two of the piece, state that regulation would:
- create clarity on legal issues and consumer protection;
- improve the overall quality of mediation practice; and
- be beneficial to the consumer.
From the outset, Mr Wang’ang’a frames these points as matters of constitutional law, perhaps unnecessarily dragging the argument in the direction of more statute. In short he is saying, consumers need protection from rogue mediators, and they will get this from more law. Let’s unpack this thesis.
First, I have no problem with the notion that consumer protection is a constitutional right except to observe that it is presumably also a contractual right under the Consumer Protection Act. It is not as if we are talking about a situation where the service provider is a large and powerful corporation or is based on the other side of the world – the consumer’s contractual counter party is just across the table and can be sued directly for breach of contract if the mediator does them wrong.
Further, given the necessary contractual relationship (unless the disputants are not paying in which case the mediator has nothing to gain whether good or bad), what is the relevance of the High Court’s supervision of breaches of the Bill of Rights? Doesn’t any court have jurisdiction as a matter of contract law?
Second, why do the Courts, as a matter of principle, need the State to provide them with a flurry of definitions of mediation and its practice in order to apply longstanding principles of contract law when dealing with cases of bad mediation? As detailed below, any statute may need to contain a bewildering range of definitions to deal with all possible varieties of mediation. Courts are well used to applying general common law standards to specific factual situations and to ‘filling in gaps’ between legislative provisions. Isn’t this what ensures that the law doesn’t become so rigid that it is liable to break?
Thirdly, how big a problem is or will be ‘rogue mediators’? Mediation is not accountancy. Mediators come to mediation, I believe, with a true and sincere desire to resolve disputes. A rogue accountant can cynically and easily cook the books for nefarious reasons – and do so as part of their business modus operandi on an indefinite basis. Could a rogue mediator similarly run a dishonest practice on an ongoing basis? Of course, a dishonest mediator could sell his or her impartiality, but I just can’t see how they would be able to generate many repeat sales. And in any case, why do we think that even the most comprehensive form of statutory regulation is going to stop such malpractice? It doesn’t seem to do so in the case of certain other highly regulated professions. I am just not convinced that there is or will be a significant problem with rogue mediators that the State needs to fix.
Fourthly, not all consumers need protection anyway – many are quite capable of protecting their own interests and a highly regulated market will only hamper their freedom to procure the mediation service most appropriate to their needs. This is likely to be particularly true where disputes are of greater value and almost certainly true when the consumer is in fact a medium or large business complete with internal and external professional advisors. Measured by value of disputes, it is likely that the vast majority of mediation will benefit more from freedom of contract as opposed to the bureaucracy of state control. Even measuring mediation by numbers of mediations and not value, it seems probable that few will be in need of the consumer protection used to justify the State’s superintendence.
Finally, if we factor in the role of mediation in presenting an effective, predictable and efficient justice system to foreign direct investors, I submit that State red-tape ‘protecting’ and restricting company’s affairs is exactly not what is needed.
An Alternative View
It has been suggested to me as an example of the particularly Kenyan situation, that we can preach to County Government dispute resolution officials about the wonderful benefits of mediation until we are blue in the face, but until the process has the stamp of approval from the Government, in the form of a legislative wrapper, they simply will not be supportive. If this is true (and especially if it is also true for many other potential users of mediation) perhaps all the objections to formal state regulation will be swept aside by an unavoidable truth – that mediation can never thrive in Kenya unless it is a creature of statute.
But then there is another terribly important question to ponder which I struggle to get people to even stop and think about: if mediation is formally regulated by law, will lawyers start recommending it to their clients (which would be what would allow mediation to really take off) or will they simply relish the opportunity to expend more client time and money dodging mediation and getting to court?
If lawyers will not so easily come on side, then perhaps the solution is even less likely to be statute. In any case, if the Government wants lawyers or county officials or anyone else to support mediation, isn’t that a marketing and communications job? Since when do marketing strategies include the line “pass an Act of Parliament”?
The Mediation Mix
Nadja Alexander introduces the concept of the Mediation Mix, illustrating that regulation is not achieved just through statute. Regulation also includes regulation by market forces, industry self-regulation and regulation through the influence of semi-formal instruments such as model laws. In truth, it is not even possible to have no regulation as market force regulation will always apply as long as someone is paying for a service.
Ms Alexander’s conclusion is that optimal regulation of mediation requires different mixes of all the various components of regulation according to circumstances, such as the type of mediation, the context of the mediation and the industry of the clients. This seems to me to be an eminently sensible thesis and one which she shows is followed almost universally in countries with successful mediation professions.
The practical issue then arises as to whether to seek to define a regulatory ‘mediation mix’ that optimises for the whole of mediation in Kenya, or to create distinct regimes to apply to the many different types of mediation and contexts that occur. There are numerous scenarios to consider and we could chart various axes along which those scenarios could range. Here are just three axes plotted, but we could also argue for a simple/complex axis, a low value/high value axis, and a dispute type axis.
Mediation and ADR Are Not the Same Thing
Against this backdrop consider that the Government is not proposing to regulate mediation, rather to regulate the whole of ADR. Further, the plan is to create an ADR Policy and concurrently (as in not driven by the resulting policy) to draft an ADR Bill. As I have already argued here, the term ‘ADR’ is really no more than an accident of history and its main constituents, mediation and arbitration, share so few attributes as to make a combined attempt to regulate them (not forgetting that we already have an Arbitration Act) conceptually flawed.
If it is correct that effective regulation of mediation requires a careful adjustment of the ‘volume’ on each slider controlling the various types of regulation, can we be confident that those in the control box are sufficiently tuned in to the subtleties involved?
The English Experience
I am of course a product of my life in the UK and I make no apologies for bringing my experience of the regulation of mediation in England and Wales to the table. Indeed wouldn’t it be rather stubborn of me not to? Of course, England is not Kenya and what works there will not necessarily work here. However, it must at least be worth considering the regulatory approach in another common law environment and in a place where mediation is well established and growing fast.[1] For all the virtue of her paper, I suspect that Ms Alexander does not have experience of the English regime because she does not directly reference it at all. (Her references to the EU regime are slightly confused as that legal framework ONLY applies to cross-border international mediation).
There is NO Mediation (or ADR) Act in the UK and the Civil Procedure Rules for England and Wales only refer to mediation in the context of the EU Cross-Border Mediation Rules and, voluntary referrals of parties to mediation. Such regulation of mediation as there is, is largely under the auspices of the Civil Mediation Council, a non-state, non-profit body and registered charity. The CMC registers mediators who have completed a CMC assessed training course which must comply with a detailed set of requirements as regards content, quality and assessment of students. CMC registered mediators commit to complying with a code of conduct in their practice. The CMC will consider complaints about mediators from users of their services and apply disciplinary sanctions, including termination of registration, against such mediators as appropriate. The Family Mediation Council applies an almost identical regime in the context of family mediation. Both organisations publish the names of all their registered mediators on their websites.
These organisations are universally recognised by mediators, lawyers and government as the de-facto authorities in their fields and whilst any person is entitled to practice as a mediator whether registered or not (or struck off), doing so without registration would be commercially difficult. Lawyers and their clients will, to a massive extent, only select currently registered mediators.
As regards issues such as confidentiality of mediation proceedings; enforcement of mediated settlement agreements and the calling of mediators as witnesses, these matters are dealt with under the existing general legal regime. Many problems can be headed off by well drafted mediation and settlement agreements and as with issues of admissibility of without prejudice material in general, the common law is already equipped to deal with the use of evidence from mediation in subsequent litigation.
In short, mediation in the UK is largely self-regulated by the industry through control of the quality of training provision and the maintenance of a register of appropriately trained mediators. Also, many mediators, whilst self-employed, obtain work through mediation organisations and panels who themselves police their mediators’ quality and competency out of commercial self-interest. On top of that, the main appointers of mediators are lawyers who develop some expertise in the selection of mediators, such that a poor mediator is unlikely to get much work. In Ms Alexander’s terms, regulation is a combination of market-contract and self-regulation and with litigation solicitors reporting that 45% of their cases are resolved through mediation,[2] it is not a regime looking for any great change.[3]
Downsides of Prescriptive Regulation
What about the downsides of overly formal regulation of mediation? I do not suggest that any or all of these would necessarily come to pass, just that they are risks worth examination and consideration before leaping.
- Any statutory definition of mediators and mediation will fail to cater to all current forms and therefore:
- Inadvertently apply restrictions for no principled reason;
- Restrict innovation and evolution in the practice of mediation.
- Once made, mediation statute will be laborious and slow to amend to cater for shortcomings discovered post implementation and innovations in mediation practice.
- Bureaucratic procedures will:
- Put potential mediators off training to become mediators;
- Discourage disputants from using mediation;
- Increase mediation costs for disputants;
- Drive down the profitability of mediation for practitioners;
- Increase the financial burden on taxpayers.
- Formal training, assessment and examination requirements will exclude some naturally gifted mediators and favour others simply good at passing exams.
- The control of mediation by the State will over-formalise a necessarily informal process and take it closer to the very State dispute resolution system to which it seeks to provide an alternative. This will have the effect of reducing the attractiveness of mediation to disputants and the trust that they have in mediators.
- State regulation will try to hold down the costs of mediation, restricting practitioner’s earnings potential and slowing down the growth of mediation.
- State regulation will have any number of unintended consequences of a deleterious effect on mediation.
- State regulation will take many years to finalise, such delay slowing down the growth of mediation.
- The process of public consultation and legislating will provide a public forum for ongoing disagreement between various factions of mediators and mediation trainers and so advertise Kenyan mediators’ inability to resolve their own disputes. A very bad look.
- Legislative decisions may be taken for reasons of politics and vested interests and not therefore in the best interests of mediation. And let’s not forget, whatever Bill arrives at Parliament following consultation with mediation stakeholders, Parliament can and probably will change it without further recourse to the public.
- Legislation will be heavily influenced by parliamentarians who are lawyers and who are fundamentally opposed to mediation for their own existential reasons. By supporting Government legislation mediators may be turkeys voting for Christmas! (As we say in the UK, where millions of turkeys are eaten on Christmas day).
Court Annexed and Beyond
There must be very few people in Kenya, excluding those with a particular vested interest, who would not like to see the rapid growth of mediation as a form of dispute resolution – the arguments in favour have been too often rehearsed to repeat here.
Currently in Kenya, there is an understandable focus on Court Annexed Mediation as the process is rolled out across the country. The Court Annexed scheme is a great pump-primer albeit not without its problems: contact details given to mediators are for lawyers not parties; mediators are given over-legalised case summaries; and sanctions for non-compliance are in practice minimal.
In Court Annexed Mediation parties do not have freedom to choose to mediate or to choose a mediator. It is therefore important that the Judiciary tries to ensure the quality, professionalism and appropriateness of its mediators. This it has done through the Mediation Accreditation Committee and the accreditation process.
But shouldn’t disputants be increasingly using mediation prior to issuing proceedings? Shouldn’t ad hoc and non-court institutional mediation grow the cake until court annexed mediation becomes a much smaller piece of a much larger pie? Where parties choose to mediate, rather than being mandated to mediate, the process is likely to be even more successful at resolving disputes. According to CEDR’s 2018 Mediation Audit, 89% of commercial mediations by UK mediators are successful.[4] Few of these will be referred by a court.
When it is normal practice to mediate before disputes become legally entrenched, there should be no need for court annexed mediation.
State regulation of mediation will NOT just cover court annexed mediation. Where disputants choose to mediate privately, that choice should not be un-necessarily encumbered by strict rules appropriate for a court-based scheme.
Conclusion
In Kenya, there seems to be a widespread over-confidence in the power of legislation to right wrongs and improve the country. Hyperlexis as New Zealand jurist, and former Prime Minister Sir Geoffrey Palmer put it – an overactive law-making gland. He said that “New Zealanders tend to exhibit an innocent and misplaced faith in the efficacy of legislation”.[5] Do Kenyans suffer from the same disease?
Curiously, despite Sir Geoffrey’s charge, New Zealand has a very successful mediation industry but without a Mediation Act, mediator accreditation or much in the way of State regulation.
If we must have legislation, and perhaps as referenced above the benefits outweigh the negatives, let it be as light touch as possible. Let the State produce, with the assistance of practicing mediators, a widely drawn code of conduct for all mediators, capturing a broad definition of mediation and the essential requirements of competence, impartiality, confidentiality and Continued Professional Development. Such a code would not preclude mediators and mediation institutions etc from publishing more exacting codes and, for reasons of market control as demonstrated above, would not even need to be mandatory. It would, however, allow the State to stamp its mark of authority on mediation as a process, whilst maintaining room for flexibility in practice and control by market forces.
Even if adherence to the code is not mandatory, courts would be likely to find the code highly persuasive in setting legal minimum standards which the common law would develop over time. If an industry self-regulatory organisation does not emerge to represent mediators and publish the details of mediators signed up to the code, the state could set up a simple service to do the same.
New Zealand, England and Wales, Hong Kong and California are all thriving mediation jurisdictions which have no state accreditation of mediators. Australia and Singapore, also with very successful mediation industries, both have state mandated but never-the-less voluntary accreditation schemes.
Mediation in Kenya is in very early stages of development. Outside of the Court Annexed programme, there is precious little mediation going on and the advocates with the whip hand, particularly in the commercial arena, are not pushing mediation to their corporate clients. Mediation is a tender flower which needs much vigilant attention and care to flourish. Tipping 20 tonnes of fertilizer on top is not going to help. Rather, judicious application of a variety of different inputs, and constant adjustment according to results, is what is required. Sleep walking into an over regulated, State prescribed regime, “because that’s how we always do it” risks, in my opinion, leaving us with nothing to regulate.
The writer is a Certified Professional Civil and Commercial Mediator and UK trained layer called to the Bar by the Honourable Society of Middle Temple in 2013. He is now based in Kenya.
[1] See data plotting the results of successive biennial Mediation Audits undertaken by CEDR in The Eighth Mediation Audit, CEDR, 2018
[2] ibid, p13.
[3] ibid, “only one lawyer respondent made reference to any need to improve standards or regulate the mediation profession.” p11.
[4] ibid, p6.
[5] Palmer, G., ‘Law-Making in New Zealand – Is There a Better Way?’, Annual Harkness Henry Lecture, Waikato University, 10th September 2014, accessed from http://www.lawsociety.org.nz/news-and-communications/latest-news/2014/sir-geoffrey-palmer-proposes-reconfiguring-legislative-process