MARY OPALO: Why go to court when mediation saves time, money

The problem is that litigation is a sure way to erode a relationship

In Summary

•He says parties that are led to a mediated settlement are more likely to be satisfied with and willing to implement the terms and conditions of a settlement.

•The mediated agreements must be in writing and should be registered with the court so that they may be enforced as they were a judgement of that court.

Court gavel
Court gavel
Image: FILE

When a legal dispute rears its head, both parties tend to look directly towards litigation as a way to resolve the dispute. The problem is that litigation is a sure way to erode a relationship as costs climb and court processes delay the resolution.

Desmond Odhiambo, Partner in the Dispute Resolution Practice at Keiti Law LLP (CDH Kenya), believes there is a more amicable and cost-effective solution to many legal disputes that are too often overlooked and that is mediation.

“Unlike typical court-based litigation processes, mediation is quicker than a traditional lawsuit,” says Odhiambo.

Mediation is defined as an informal process, where a mediator who is a third party with no decision-making authority attempts to bring the parties to end their conflict by agreement. 

“Mediation focuses on the needs and interests of the parties involved as opposed to legal positions and enforceable rights,” says Odhiambo.

“The mediator is there to understand both positions and assist in facilitating a win-win solution to the dispute.”

Aside from being more cost-effective, Odhiambo believes mediation’s greatest strength is its ability to preserve relationships.

He says parties that are led to a mediated settlement are more likely to be satisfied with and willing to implement the terms and conditions of a settlement.

“This is a voluntary process. Nobody is being forced into something. In my experience, parties involved in mediation are more likely to retain a normal and even friendly relationship than they would after a more heartless litigation process.”

The key to the mediation process is, of course, the mediator. Odhiambo says a mediator is there as a neutral third party to assist and guide the dispute process toward a resolution.

“They do not decide the outcome of the dispute but rather help the parties understand and focus on the important issues needed to reach a resolution.”

Odhiambo says most people don’t realise that agreements entered with the assistance of a qualified mediator are legally enforceable.

They are considered contracts, which means they are legally binding. The mediated agreements must be in writing and should be registered with the court so that they may be enforced as they were a judgement of that court.

The benefits of a properly conducted and officially recognised mediation process far outweigh the disadvantages. Odhiambo lists these benefits:

  • It is a voluntary process, so parties have complete control over the resolution of the dispute.
  • It promotes and preserves the harmonious relationship of the parties in dispute.
  • It is flexible with no strict formalities in terms of how mediation should be conducted
  • It is timely and cost-effective
  • It is private and confidential with all communication during mediation sessions being strictly confidential and unable to be used against the parties.
  • It has a high rate of compliance as parties are usually the ones who construct the dispute solutions.

“Mediation is growing in popularity, and it’s hard to imagine why it was not so widespread in the first place,” says Odhiambo.

“While lawyers are not a compulsory part of the process, they are encouraged to help clients actively participate in the mediation sessions and find legally sound and expedient resolutions to the dispute.”

Mary Opalo, MPRSK Public Relations Consultant

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