Mediation for Resolving Child Matter in a Marital Conflict

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Children are always the silent victims of all conflicts despite their innocence and naivety. In marital disputes, they become the battleground and the weapon to settle scores between the two disputing parties. Maintenance, custody, and access are some of the ugly battles children have to endure after broken romantic relationships. Worse still, is the exposure to the hostility of the court battles they have to endure as the disputing parties seek justice. Children’s rights have it that, by all means, children should be prevented from entering the judicial system with the laws backing other out-of-court alternatives such as mediation. Professional mediation preserves a future healthy relationship which is very important for co-parenting.

Mediation has a long history in Kenyan culture and was traditionally used to resolve various disputes, such as domestic and land issues, through negotiation, arbitration, or mediation. Similarly, today, many domestic disputes are resolved through mediation at the family level, with the goal of reconciling the couple and keeping the disagreement within the family. In 2016, professional mediation was introduced as an Alternative Dispute Resolution (ADR) method in the Kenyan Judiciary, with the aim of resolving cases faster and more cost-effectively, and promoting amicable agreements. However, there is still a lack of awareness about mediation among the general population, as evidenced by the rising number of cases filed in the courts. The Constitution of Kenya recognizes the importance of Alternative Dispute Resolution mechanisms, and mandates the courts to promote reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms, subject to certain conditions. To address the issue of case backlog, it is proposed that a Compulsory Mediation process be established to encourage disputing parties to try to resolve their disputes before resorting to lawsuit.

Family disputes, which can involve matters such as succession, divorce, child custody, and other contested issues, can be challenging as they require major life decisions that can impact familial relationships. ADR is an umbrella term for various formal and informal techniques used to resolve conflicts outside of lawsuit, such as negotiation, mediation, conciliation, arbitration, adjudication, and expert determination. Family mediation is one of the branches of mediation which is an interest-driven, voluntary, confidential, and party-driven process that involves a neutral third-party mediator who helps the disputing family members negotiate and resolve their conflicts.

The mediator's role is to facilitate a voluntary and mutually acceptable settlement that preserves familial relationships. This article advocates for use of mediation for Children’s custody and maintenance disputes – the mediation could result in a parental responsibility agreement thereby avoiding exposing children and even partners to hostility in court. Mediation is forward-looking and aims to help parties identify, negotiate, and resolve issues directly, and it can be ideal for disputes involving children custody and maintenance, matrimonial property, succession, shareholder/director, and interpersonal issues. The mediator plays a neutral role, understands the scope of the conflict, promotes communication and understanding, cultivates mutuality in issues, recognizes and emphasizes conciliatory gestures, guides parties through emotional stages, facilitates confidential caucuses, and creates a safe, open, and honest environment.

Family mediation typically involves several stages:

1. Pre-Mediation: This involves a Mediation Information & Assessment Meeting (MIAM), where the mediator schedules separate meetings with each party to ensure that they are interested in mediating and have realistic expectations of the process.
2. Initial Meeting & Collection of Information: Once the mediator receives instructions to undertake mediation, they will meet with either the disputants or their advocates to request a detailed outline of the issue. The mediator collects all necessary information and documentation from the parties to gain a better understanding of the broad situation and each party's perspective of the conflict.
3. Separate & Joint Sessions: The mediator may hold separate and joint sessions with the disputants, including meetings with any children involved who can express themselves, to ensure that they are always getting the information they need from all parties.
4. Bargaining & Generating Options: With both parties committed to achieving a negotiated settlement, the mediator helps them generate options through brainstorming, hypothesizing, creating scenarios, and mediator's proposals. The mediator will guide the parties through their Best case scenario (BATNA) and Worst case scenario (WATNA) to facilitate the brainstorming process.
5. Reaching an Agreement: The mediator will build on the issues that parties seem to concur on and mark them as done from the initial agenda. The mediator will also assist the parties in doing a reality check to confirm that what they have agreed upon is realistic, legal, and sustainable. Parties may agree on issues fully or partially, and the mediator will record the agreement for the parties to sign.

Family mediation is a process that prioritizes the relationship, views, values, interests, emotions, and needs of the parties involved. While mediation is beneficial for most people, it may not be suitable where there is a threat to life or property until such threat has been dealt with legally, and there are measures in place to protect the parties' interests.

Even if parties have already begun litigating, it is not too late to benefit from mediation. The litigation process can be paused to allow the parties to mediate, or they can engage in Court Annexed Mediation, which is embraced by Kenyan law and judiciary through Article 159 of the Constitution of Kenya and Sections 59A, 59B & 81 (2FF) of the Civil Procedure A

There are several advantages, which we will outline below.

Family disputes can benefit greatly from mediation, which offers a range of advantages over traditional litigation. Here are some of the key benefits:

1. Empowers disputants to make their own decisions: Mediation allows the parties involved to explore different options and come up with tailored solutions that work for everyone. This approach recognizes the legitimate needs and rights of each person and encourages a collaborative approach. Mediation allows parties to resolve their issues without confrontation or adversarial tactics.
2. Cost-effective: Mediation is generally less expensive than traditional lawsuit, which can be prohibitively expensive for many families. Parties have better control over costs, and there is less chance of costs escalating due to lengthy court proceedings.
3. Promotes cooperation and reconciliation: Mediation is a more cooperative and less adversarial process than lawsuit, which can help reduce stress and tension in families. While it doesn't necessarily reconcile parties that have decided to go their separate ways, mediation can help repair damaged relationships and foster positive future interactions.
4. Quicker resolution: Mediation can typically resolve family conflicts within three to six months, while lawsuit can drag on for years. Mediation is generally faster and less costly than lawsuit.
5. Provides a safe space for communication: Mediation allows parties to express themselves and ventilate issues in a safe, neutral space. This can be especially important for sensitive topics that may not be addressed in a court of law.
6. Improves communication: Mediation allows the parties to communicate directly with each other with the help of a mediator, who facilitates a constructive conversation. Through open communication, parties can make informed decisions, consider their options, and understand the consequences of their choices. Mediation is focused on problem-solving and finding practical solutions that are acceptable to both parties. There is no finger-pointing or focus on assigning blame.
7. Ensures equal time and understanding: The mediator helps ensure that each party has equal time to express their concerns and fosters mutual understanding. This prevents the conversation from becoming one-sided. Rather than having a judge impose a decision on them, parties can work with their mediator to reach a resolution that they agree on. This gives them complete control over the outcome, which can be more satisfying than having a decision forced upon them.
8. Future-focused: Mediation is focused on finding solutions that work for the future, which is especially important in cases involving children. Effective co-parenting requires ongoing communication, and mediation can help preserve relationships and facilitate ongoing communication.
9. Mediation can be therapeutic, as it allows parties to express their underlying emotions and gain a better understanding of each other's perspectives. This can lead to emotional healing and a more effective resolution of the dispute.
10. Finally, mediation sessions are held on a without prejudice basis, meaning that anything discussed during the sessions cannot be used in court later on. This allows parties to explore different options without fear of it being used against them in future proceedings.

Disclaimer: This article is intended for general informational purposes only and should not be construed as establishing an attorney-client relationship with any reader. The information, content, and materials contained herein are not a substitute for individualized legal advice from a qualified attorney, and readers with specific legal issues should contact such an attorney for guidance.