A day in a mediator’s job: what mediation is and what it’s not

A day in a mediator’s job: what mediation is and what it’s not

        Rev. Geoffrey Njenga

Rev. Geoffrey Njenga serves at the All Saints Cathedral. He is an Economist, has trained in Diplomacy and Public Relations and holds Master’s Degree in Theology. Rev. Njenga trained as a professional mediator with the Mediation Training Institute and was later accredited as a mediator for the court mandated mediation program. He speaks to Jerusha Gichohi, Assistant Director, Directorate of Public Affairs and Communication, recently caught up with mediator Rev. Geoffrey Njenga at the Milimani Law Courts for a one-on-one interview. Here are the excerpts from the interview.

What led you enroll to be a mediator with the Judiciary.

As a clergy, I have a wide experience in family mediation matters and when the opportunity arose to work with the Judiciary I took it up. I love to mediate because it gives sustainable peace and restores broken relationships. As a Christian, it is all about peace, the Bible demands that we pursue peace and hence when I mediate I get personal satisfaction. I have enlisted to mediate in both family and commercial cases which I have wide experience in my professional capacity as a mediator and a trained economist.

How does the Judiciary contact you on cases to mediate?

The disputing parties choose their preferred mediator from the Judiciary’s accredited mediators. If I am selected to mediate over a case, the Judiciary contacts me to start the negotiation. The Mediation Deputy Registrars in the Family or Commercial Divisions notify me via email and give me the case file that they want mediated.

How do you schedule your cases?

Once I receive the case, it is up to me to look for the parties. In most cases I contact them through telephone and if they are not accessible I go through their advocates and in some instances for those in the rural area I have to contact them through their local chiefs. This can take up to a week or more. Once I reach both parties, we all agree on date and venue of meetings (which is provided by the Judiciary). However, flexibility is the rule of the day, there is this time I had to go meet the disputing parties at a chief’s office in Dagoretti because one of the party who was elderly felt the city life was unbearable. It is also my duty to inform parties that the mediation is mandatory and also that all communication during mediation is confidential. I have to resolve a case within the 60-day timeline set for resolving disputes, however, a further ten days may be extended if the case is complex or has large number of parties.

How do you prepare the disputing parties, set the climate?

My job as a mediator is to ensure free flow of communication between the disputing parties so that they can focus on the issues in conflict. Most of the parties are usually immersed in emotions and it is very important for a mediator to cool down emotions and bring about an atmosphere where parties can focus and work towards a win-win resolution. This I do by engaging in small talks such as the weather, traffic or even politics which help to cool down temperatures. The usual soft skills such as being a good listener, reading the body language, being patient are all needed in this situation. Once the atmosphere is relaxed, I request each party to tell their side of dispute. At this point I will have already set ground rules that no interruption when one party is speaking. In cases where I am able to speak the parties’ vernacular language, I do so to enable them to express themselves with clarity.

What are the things to observe during mediation?

As a mediator, I am clear that my role is not to impose decisions on the party but to facilitate them to come up with their own solutions which should be agreed by both parties. There are instances where one side is very vocal while the other side feel disempowered and think they will be the losers. It is my job to carry along everyone and they need to negotiate for their own good To ensure fairness I insist for all to express their interest. After parties sign up an agreement, it is forwarded back to court and stamped as a court judgment or order. Since both parties have signed, the judgment cannot be appealed; which saves time and money often spent on long and protracted appeals in the normal adversarial court process.

And when parties don’t agree, what next?

When parties fail to agree, I file back to the Deputy Registrar with my mediation report on why the case failed mediation. At times parties will not agree 100% to issues so we have cases concluded with partial agreements on certain issues and then the others are returned back to court for direction and determination.

How many cases have you mediated?

I have mediated about 25 cases in both the Family and Commercial Divisions since the Court Annexed Mediation was introduced. On average a case takes about three sessions to resolve. These timelines cannot be compared to the court process which is long, tedious and often acrimonious.

Which is the most memorable case you have mediated upon?

There is this case which had been in court for over 15 years and once I took it up for mediation we resolved it in a record time three weeks!

Why would you recommend mediation instead of court litigation?

Litigation has no room for you to vent out your emotion. If during a hearing a litigant breaks down with emotion, the judge will just adjourn the case to allow the person time to go deal with their emotions. In contrast, mediation allow parties to express their emotions as the mediator brings them to reason about their dispute. Mediation is all about win-win situation unlike the court cases where there is a loser and a winner. Settling commercial matters through mediation makes great commercial and economic sense to the country’s economy as it swiftly frees resources—sometimes running into billions of shillings— which would otherwise have taken decades to settle. On the other hand, the Family Division arbitrates over some of the most bitterly contested and hard-fought cases. Family relationships are damaged forever as families wrangle in court for years. Mediation offers an alternative way of managing family disputes that helps restore relationships.

 

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