Conflicts or disputes may arise in different spheres of human existence. Be it within families, within businesses, in the employment sector or in communities. Conflicts arise when two groups or individuals interacting in the same situation see the situation differently because of different sets of settings, information pertaining to the situation, awareness, background, disposition, reason or outlook.
By the virtue that there is conflict, there must be mechanisms towards ensuring dispute resolution is achieved. There are numerous dispute resolution methods such as negotiation, arbitration, litigation, adjudication, traditional dispute resolution mechanisms and mediation. These are but a few of conflict resolution methods. This article therefore delves on mediation and litigation with the aim of contextualising and conceptualising them, and contrasting them in equal measure.
Mediation: Mediation is an alternative dispute resolution (ADR) mechanism which is acknowledged in many jurisdictions, including Kenya. Black’s Law Dictionary defines mediation as a private informal dispute resolution process in which a neutral third party, known as a mediator, helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties. Mediation is an informal and non-adversarial process wherein the decision-making authority rests with the parties, not the mediator.
The benefits of mediation include but not limited to: mediation saves (time, finances, social and emotional) costs, decision-making power remains with the parties (consensual problem solving), mediation can help to avoid grandstanding and deadlocks, focus on interests not positions, mediation acknowledges (inter)subjective criteria, privacy and confidentiality, development of future oriented win-win solutions, increased range of options, flexibility of the process: mediation is pursued within an agreed timetable, mediation improves communication, mediation will preserve and increase ongoing (business, social, private) relations, sustainability of agreements and client satisfaction with the agreed solutions.
Litigation: This is the process of taking a dispute to a court of law. If parties cannot agree between themselves about the fair and proper outcome of a dispute they will present their respective cases to a court for hearing and determination. Litigation is the most common known method of dispute resolution in the world, Kenya included. Litigation entails filing your case in court for the Judge or Magistrate to determine the issue at stake. In litigation, one has to adhere to standards and procedures of the court failure to which one’s case can be dismissed on technicalities without having the matter resolved.
Despite being commonly used in resolution of disputes, litigation has many challenges. First, the process is costly. The party filing the case in court must pay filing fees and in many cases also pay lawyers fees. Secondly, it takes a long time to resolve disputes even where issues in dispute are not complex. In jurisdictions like Kenya where the number of judges and magistrates are limited, there is a huge backlog of cases in courts; a simple case may therefore take years to resolve. The long wait leaves parties exhausted, emotionally charged and at the end, there is break up of relationships. In litigation the outcome is not a win-win situation because the process is tailored to result to a winner and a loser.
One of the most obvious benefits of litigation is that you know that however long it takes, you’ll eventually have a result, whether you like the result or not. Where ADR can break down, litigation is your last and most conclusive hope of resolution or closure. For that reason, it is always important to have litigation experts at your fingertips when you go through the dispute resolution process.
When litigation goes through the courts, it also provides lasting benefit in the form of precedent. That means parties can point to previous rulings in similar cases and use that precedent to bolster their own argument. This is an ever-present advantage of litigation as it allows speedier dispute resolution where similar claims are made. This is useful if you find that the same spurious claims are made against you or your business and don’t want to have to keep starting your argument from scratch.
In litigation most of the time lawyers are involved unlike mediation where parties need not to have lawyers. In mediation, the parties determine how the issue is to be addressed and the procedure to be used while in litigation the procedures have been set and one can’t circumvent them for his or her own advantage. The mediator has the role of assisting the parties in getting to agree without influencing the same while in litigation the judge determines the issues after the parties present their case and the decision is final unless the same is appealed.
Parties in mediation have autonomy of the process and outcome in litigation; the parties are the mercy of the court. Relatively, issues referred to mediation are resolved quickly unlike the normal litigation which may take years for a dispute to be resolved. Litigation is adversarial in nature and in the end leads to more breakdowns of relationships unlike mediation which aims to restore the relationship of parties by adopting a friendly approach. Mediation realises the tenets of access to justice because matters are handled fast and mediators are all over the country, litigation on the other hand has to be within the court setting of which in some areas it takes long for one to get to a court this inhibits access to justice. However, whenever mediation fails then parties consider litigation.
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