Almost 100,000 lawsuits are filed in Kenya each year. After millions of shillings in advocate’s fees, expert fees, millions of lost hours, and thousands of destroyed relationships, about 50% of those cases are settled out of court without ever even going to trial.
This is an embarrassing waste. When a dispute arises, our first instinct is to say “SEE YOU IN COURT “ It doesn’t have to be this way. Instead, we should make mediation our first choice and arbitration or litigation our last resort.
When people hear the word “mediation”, they often think it’s “meditation”. Mediation has nothing to do with the sitting in a “lotus” position and humming a mantra. Mediation is the alternative to litigation. It’s another way of saying “You mean, I don’t have to go to court?” That’s right – it means you don’t have to go to court. It’s a process that brings people together in direct negotiation to resolve a dispute with the help of a neutral third party. The process is informal, and allows the parties to express their opinions about the issues, consider alternative creative solutions and reach results they want directly with each other instead of doing it before a judge. The best time to start mediation is when the dispute first arises, before positions have hardened when accusations are being thrown back and forth at each other.
The process is completely voluntary. If the mediation is not successful, the parties still have the right to go to court. It’s private. No one outside the parties need to even know there is a dispute. It’s confidential. The parties are free to suggest solutions and options that are different from what they would demand in a lawsuit. They can offer these options without fear of their being used against them if the dispute does end up in court. Mediation is faster, less emotionally stressful, and much less expensive than litigation. Best of all, the parties decide their own future, not a judge or court room full of strangers. The parties create their own settlement to their satisfaction. Advocates and the mediator can offer alternatives for them to consider, but the parties themselves work together to reach a workable agreement that meets their needs for the future. When this happens, positive long term relationships can be preserved.
While there is no guarantee that mediation will solve every problem, there is an extraordinary record of success where it has been used. If 50% of all filed lawsuits are settled before trial, doesn’t it make more sense to try to settle them at the outset before incurring huge legal costs and totally destroying relationships? Mediation is the smart alternative to litigation.