What is Mediation Anyway?

Mediators in Kenya have one, primary, over-arching impediment to the development of their profession.

People do not know what mediation is. 

Stop 100 people on the streets in Kenya and ask them if they have heard of mediation as a form of dispute resolution and if so, to describe how it differs from arbitration and I believe that the results would be sobering.  It would be a reminder of how far we have to go before Kenyan’s learn to re-set the “see you in court” attitude.  As a busy practicing mediator swimming daily in the sea of effective dispute resolution, it is all too easy to forget how few people really understand our art. 

In this context it is very unfortunate that the term mediation tends to be so lazily used, and abused, by journalists, politicians, and yes, even constitutional lawyers. 

Parliamentary Mediation

Articles 112 and 113 of the Kenyan Constitution created the concept of a ‘Mediation Committee’ of parliamentarians to attempt to resolve deadlock in the passing of legislation by the two Houses of Parliament.  Whatever the merits or otherwise of the procedure, as defined by the Constitution and by the Kenyan Parliament, (http://www.parliament.go.ke/sites/default/files/2018-04/18_The_Mediation_Process_in_Law_Making.pdf) the process does not actually involve a neutral third party and is therefore not mediation at all. 

In recent months, political commentary in the media has been full of coverage of the so-called mediation committee trying to resolve the impasse over the Division of Revenue Bill over how much money County Governments should receive from the State.  On another occasion, I will examine whether the Parliamentary mediation process should involve a mediator (could we find one truly neutral on the subject of national statute?) or whether the real problem is the use of the wrong word to describe the process.  Either way, and pausing to wonder why the drafters of the Constitution chose the word ‘mediation’, the unfortunate result is that to an already un-informed population, mediation is coming to mean a process in which parties to a dispute have a 30-day argument without necessarily finding a resolution.

Kofi Annan

Going back to our vox pop, some positive impressions of mediation would probably reference the late Kofi Annan.  In the wake of the 2007 election violence, it was the then recently retired United Nations Secretary General who got the Kenyan political factions talking and ultimately, agreeing to move government forward rather than tearing the Country apart.  It is a worthy example of successful mediation to appreciate but to what extent does such high-level political mediation feed into people’s approach to their own disputes over a breached contract, will or marriage vow?

More Mediation Which is Not Mediation

And then there’s the mediation that we often read about in the media, where a political, religious, business or community leader is said to be “mediating” a settlement of some or other public spat.  The press seem quite happy to report this as mediation, but with the greatest respect to these various individuals, many of whom will sincerely try to resolve a dispute to the best of their ability, many have no formal training as mediators, some no actual experience, and in some cases deploy little more than sheer power and influence, force of personality or plain old fashioned grandstanding skills in coercing disputants to settle.  It is barely worth even stating, but we know very well that browbeating disputants into settlement is not very likely to produce lasting peace.

A recent example of this surrounds the row in Taita Taveta County in which MCA’s are in dispute with the Governor, Granton Samboja, the later proposing to dissolve the County.  First, we were told that a former MP from the area was going to ‘mediate’ (is he truly neutral?) but the MP was quoted as saying that the parties should sit down and find solutions and that ‘arbitration is the way to go’.  Then we learnt that the Chair of the Council of Governors had selected the Governor of Kilifi to ‘spearhead mediation talks’, but meanwhile, both Samboja and senior members of the County Assembly were allegedly holding ‘high profile talks’ with national leaders in Nairobi, including the President and Raila Odinga.  None of this sounds like real mediation to me!

Real Mediation – in all its Forms

Even once we arrive in the tranquil waters of ‘real’ mediation there is a problem.  To its credit, mediation successfully resolves disputes across a wide variety of disputes and disputants, but this means that there are many different settings and nuances to the technique and even more uses and meanings, in people’s minds, of the word ‘mediation’. 

Mediation of violent disputes between communities or states; mediation of marital disputes; mediation of trade or labour disputes; mediation of tensions within organisations.  Even mediation of an argument between fighting children or drunks on the street is a kind of mediation.  Sometimes mediation is a step in a formal litigation procedure, sometimes there is no legal dispute involved at all.  Sometimes, the mediator is a professional mediator, sometimes merely an experienced mediator, and sometimes not really a mediator but just pretending. (Or a parent!)

When we talk about mediation, we may know precisely what we mean – the problem is that the person or people to whom we are talking may have other ideas! 

Media Misrepresentation of Mediation

Look at it from a typical Kenyan’s perspective – how on earth could they know what we mean by ‘mediation’, when the word is thrown around with such abandon by influential people who typically use it interchangeably with ‘arbitration’ or ‘ADR’?

Professional mediators know that mediation is a private process in which parties are assisted by a trained neutral, to work together to find their own resilient solutions to problems.  How often is this essential truth clearly communicated in the media?  Let’s not be surprised that Kenyans who happen to be journalists, are frankly no clearer about what mediation is or isn’t than any other citizen. 

James Mangarere of MTI East Africa says that most people don’t know the difference between mediation, meditation and medication!  It’s a salutary warning and we should remember that no-one is going to fix that problem other than mediators ourselves.  It is down to each and every one of us to educate people and I believe that in the first place we should start with the media and the news journalists who often get it so wrong.

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