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technology 25 Nov 2019

Here is why you may prefer mediation over Court Processes

By Kirwa Bernice – Advocate & Mediator

Complex, Costly, inadvertent delays, lack of autonomy, these are words you may summarize as the crux of this article. Perhaps you may want to ask “why?” Let me explain a little more. Once involved in a dispute and your rights have been infringed, it is second to nature for a Kenyan to run to court. Many a times I hear people say, “I shall appeal to the highest court in the Land.” Whether or not the court process is efficient is a discussion for another day. Today I shall give you a life hack for whenever you are saddled by a dispute. 

When you have a complaint against a fellow citizen, you are advised to engage a Lawyer who will draft documents that state your case. You will be required to sign petitions or pleading and even swear affidavits at some point. The preparation of the documents shall take anything between a week and a month in some cases. Your lawyer shall serve the other party in the dispute with these documents, it is assumed that after receiving the complaint the person will respond through drafting more documents, what we call in law a defence. This process will usually take until one month. By the time the dispute comes before a magistrate or a judge it will have taken nothing short of two months since the occurrence of the incident. 

On the other hand, when resolving a matter by mediation, the parties in dispute usually appoint a third party (a mediator) who is neutral. One party may even propose a mediator they would want to preside over their dispute. Once an agreement has been reached on who should mediate, the process begins almost immediately. For family matters that are complex it can take up to 7 days maximum before a conclusion is reached. For matters involving simple commercial transactions, one day is enough. The mediator will employ professional tactics and guide you and your opponent to an outcome most favorable to you both. It is important to overstate this, the mediator will not make any decision for you both, and solutions come from you.

So why should you choose Mediation over court processes? As you can already see, you do not need to appoint a lawyer, or incur costs of paying one. Although if you prefer to involve your lawyer in mediation you are allowed to tag them along. As a matter of fact I highly recommend that you do so. Secondly, you need not need file any documentation. Normally the mediator will sit through a session where you both speak out your case. Thirdly, mediated disputes are resolved in shorter times compared to court cases. You can resolve the dispute fast enough to enable you get back to your normal life soonest possible. Most importantly, you are able to influence the outcome of the dispute. Since the mediator has no interest in the matter and will not play judge, you are empowered to suggest what you would want to have as a remedy. Unlike in court where yours will be to tell your story for the judge to hear and determine what outcome you will get. 

So next time you have a complaint, think again. Justice delayed is justice denied. Mediation truly works. We at Kirwa Mediation Initiative know this all too well.

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