Mediation: Frequently Asked Questions
i. What is Mediation?
Mediation is a voluntary form of dispute resolution where parties agree to resolve their dispute with the help of an impartial third party called a Mediator.
ii. How does CMC Mediation work?
Parties voluntarily approach CMC with their dispute, which is presented to our case managers for assessment. Parties have the option of choosing a mediator from our panel of mediators or have the Centre appoint one for them. An agreement to mediate will be signed by the disputants prior to the Mediation process. The mediation process is concluded when the parties sign a mediation agreement as per agreed terms of resolution. This agreement is subject to the Law of Contract Act CAP 23.
iii. What if we don't reach a settlement in mediation?
A majority of disputes submitted to mediation are successfully resolved. However where Mediation process ends in an impasse, parties can opt to combine mediation with arbitration. In such a case, the dispute is submitted first to mediation under the CMC Mediation Rules. Then, if a settlement is not reached within a defined period of time the dispute is referred for a binding decision through arbitration.
iv. Which disputes can be mediated?
Any civil, family or commercial matter can be mediated. Any dispute of any nature can be mediated upon assessment under CMC rules. Mediation is especially suitable where the dispute occurs between parties to a continuing contractual or personal relationship.
It should be noted, however, that there is no limitation on the competence of CMC mediators. Our mediators appointed under the CMC Mediation Rules are competent to deal with all aspects of any dispute.
v. What are the advantages of Mediation?
Mediation is an attractive alternative where any of the following are important priorities of either or both of the parties:
- Minimizing the cost-exposure entailed in settling the dispute;
- The maintenance of control over the dispute-settlement process;
- A speedy settlement;
- The maintenance of confidentiality concerning the dispute;
- Preservation or development of an underlying contractual or personal relationship between the parties to the dispute.
vi. At which stages of a dispute can mediation be used?
Mediation can be used at any stage of a dispute. It can be chosen as the first step towards seeking a resolution of a dispute in contractual agreement. Mediation can also be used at any time during litigation or arbitration where the parties wish to interrupt the litigation or arbitration to explore the possibility of settlement.
Another common use of mediation is more akin to dispute prevention than dispute resolution. Parties may seek the assistance of a mediator in the course of negotiations for an agreement where the negotiations have reached an impasse.
vii. Why choose CMC mediation?
CMC mediation offers the following advantages:
- Low administration fee.
- A competent roster of mediators including persons with specialized knowledge and experience in the technical, business and legal subject matter of various disciplines as well as experience in Mediation.
- Flexible Rules with provisions sensitive to our clients needs.
- Where the mediation takes place in Mombasa, hearing chambers are provided at no extra cost.
viii. How can I be sure mediation will produce a fair result?
Parties are in control of the mediation process. The Mediator is non-partisan and does not impose any decision on the outcome of the mediation.
ix. What language is used in CMC Mediations?
The parties decide the language in which the mediation will take place. They may choose a single language or they may choose to use two languages and to have interpretation including sign language where needed.
x. If I choose mediation, will I still need a lawyer?
A lawyer’s help in Mediation is important but not compulsory.
xi. How can a Lawyer help in Mediation?
Your lawyer can be of tremendous help to the mediation process in several ways including; proposing mediation to the other side, explaining and completing mediation paperwork, helping you to evaluate settlement options as well as reviewing or writing a binding agreement.
xii. WHO PAYS THE COSTS?
The CMC Mediation Rules provide for the costs of the mediation (the administration fee of the Center, the mediator’s fees and all other expenses of the mediation) to be borne in equal shares by the parties. The parties are free to agree to change this allocation of costs.
xiii. WHEN DO WE PAY?
The cost for the mediation session is payable upfront or at the end of each session.
xiv. How long does mediation take?
Mediation sessions are scheduled for 60-120 minutes. The number of sessions will depend on the nature of the dispute. Generally it is 3 to 6 sessions that are required
xv. What other alternative forms of dispute resolution does CMC offer?
CMC offers Arbitration, Med-Arb and Arb-Med mechanisms besides Mediation.
For any other questions, please write us at email@example.com