Mediation Advocacy in Kenya –Remoulding The Gladiator in the Room tothe Valuable Ally of Dispute Resolution
This paper considers the role of lawyers within the Mediation process in Kenya and attempts to shed light on the best practice for Mediation Advocacy and practice generally and the Court Mandated Mediation Program in particular. This follows persistent murmurs from the Mediator community that lawyers are often the stumbling block to a successful mediation settlement agreement. The article aims to deconstruct the role of the lawyer in the mediation process as well as the interplay between the lawyer’s role as protector of their client’s interest and the Mediator’s goal of achieving a satisfactory settlement between the disputants, and how to pivot both to achieve the real purpose of mediation which is a “Win-Win” outcome.
The growing prevalence and influence of mediation as a dispute resolution mechanism means that the advocate must acquire a completely new tool box for dispute resolution. It also requires the disputants to adopt a collaborative approach to dispute resolution.This is a huge departure from the traditional adversarial approach of our common law based legal system.1Mediation practice was introduced fairly recently within the formal dispute resolution framework in Kenya with the enactment of Act No. 12 of 2012 that established the Court Mandated Mediation Process. To the consternation of many a mediator a good number of advocates automatically engage their gladiatorial adversarial approach during the mediation process. It takes a skilled mediator to manage this tendency. One of the cures to this state of affairs is to encourage advocates to acquire more than a passing knowledge of the process of mediation and to discern when to utilize mediation advocacy skills to the maximum advantage of their clients.