Resolving Family Disputes Through Alternative Methods: Family Mediation

Having family disputes is undeniably difficult. Family disputes of whichever nature such as contentious succession matters, divorce and separation, children custody or other contested matters go to show that there is need to make several life-changing decisions which bear consequences on the familial relations. Some of these disputes, especially where children are involved require decisions that meet the evolving needs of the children, the unique dynamics of the family and time. Some circumstances call for urgent litigation especially where there is need to ensure there is a court order in place that secures the parties interests. Once these interests are protected, the parties can proceed to engage in alternative dispute resolutions mechanisms. Alternatively, families can engage in Alternative Dispute Resolution Mechanisms to resolve and agree on issues pre litigation thereby allowing for the adoption of this agreements in court and avoiding unnecessary acrimony.

Alternative Dispute Resolution (ADR)

So, what is ADR? Alternative Dispute Resolution is an umbrella term for a variety of formal and semi-formal resolution techniques, often involving a neutral third party, that can be employed in place of litigation. Alternative Dispute Resolution mechanisms include Negotiation, Mediation, Conciliation, Arbitration, Adjudication & Expert Determination. We shall take an in-depth look at Mediation and specifically Family Mediation.

Family Mediation

Mediation can be defined as a structured, interactive process where an impartial 3^rd party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. It is the job of the neutral 3^rd party or mediator to facilitate a voluntary, mutually acceptable settlement. Based on the above, family mediation is a structured, interactive form of alternative dispute resolution whereby a neutral 3^rd party (the mediator) helps family members navigate negotiations of family conflict. Such conflicts may be on contested succession & probate matters, division of matrimonial property & child custody and maintenance conflicts.

The nature of Family Mediation

1. It is a voluntary, confidential & party driven process.
2. It involves an impartial 3^rd party (The mediator)
3. It is interest driven (win-win solution)
4. It is intended to preserve familial relations
5. It is participatory-all parties to the mediation are encouraged to actively participate in the process.
6. It requires extreme good faith.
7. It is direct- helps the parties to identify, negotiate and resolve issues directly.
8. It is typically more emotive than other types of mediation.
9. It is a non-adversarial process.
10. It is forward-looking- the parties to the mediation are encouraged to focus on the now and the future rather than focus on past conflicts. While the parties may begin to understand some of the past conflicts in a different light, the mediation process will not focus on primarily working to resolve them. It is important to note that for some parties to get a resolution, past wrongs have to be made right. There is a place for this in the mediation agreement if the parties can remedy the past wrongs at the present or going forward.
11. The initiating and non-initiating parties are usually at different emotional stages.
12. There are various stages to a family mediation which while non-sequential overlap each other and go back and forth. The different stages in a family mediation make it all the more challenging as is rewarding when parties can finally see eye to eye over their conflicts.

The Purpose of Family Mediation

The aim of family mediation is for the parties to arrive at a solution of their own creation. Most family conflicts have emotional and relational components as well as legal and financial implications. More often than not, litigation in court only focuses on the legal aspects of the conflict. Mediation, on the other hand, creates an environment where even seemingly innocuous issues can be addressed. The presence of the mediator is aimed at assisting parties to focus their energies on practical outcomes rather than fighting each other.

Examples of Family Disputes that are ideal for mediation

1. Children custody and maintenance disputes – the mediation could result in a parental responsibility agreement thereby avoiding acrimony in court.
2. Matrimonial Property Disputes - the mediation could result in an agreement that may be adopted in court or a deed of settlement.
3. Succession Disputes – the mediation could result in a deed of family arrangement (for probate matters) or a beneficiaries’ agreement (for intestacy matters).
4. Shareholder/director disputes in family business – mediation will avoid unnecessary publicity and pays credence to unique family dynamics in addition to the legal rights to parties thereby allowing for an all-encompassing solution.  This ultimately strengthens the business position and avoid disrupting the business.
5. Inter-personal disputes among family membersg. civil disputes, commercial arrangements etc. mediation preserves the familial ties whilst reaching a beneficial middle ground for both parties.

The Role of a Family Mediator

1. The mediator is a neutral 3^rd party who will not at any point of the mediation advocate for a single side of the conflict.
2. Understand the scope of the conflict and set out the agenda for the mediation.
3. Find the common ground between the parties are eliminate obstacles on the journey to resolution.
4. Define the concerns of each party in an effort to promote communication and understanding.
5. Ensure that parties to the mediation have an equal opportunity to express their concerns so that the mediation does not become one-sided.
6. Move the parties towards interest-driven solutions and cultivate mutuality in issues.
7. Recognize and emphasize conciliatory gestures made by the mediating parties.
8. Recognize the emotional stages in a family mediation and guide the parties through them.
9. Facilitate a confidential caucus for each party.
10. Keep the matter confidential.
11. Facilitate a safe, open and honest environment.
12. Employ the use of soft skills such as proper communication, optimism, empathy, deep sensitivity and determination.
13. Ask the right questions and listen beyond the spoken word.
14. Draft the mediation agreement as applicable.

Role of the Disputants

The parties need to remain engaged through out the entire process through talking openly and honestly, not walking away, not engaging in power plays and take risks and acknowledge when conciliatory gestures are made.

Benefits of Mediation for Family Disputes

1. Gives the disputants decision-making power. The parties have the ability to explore various options available to them recognizing the legitimate rights and needs of each party and effectively come up with settlement options with the interests of both parties involved. Mediation allows the parties/disputants to create a tailored solution that works best for the parties and their families.
2. It is less expensive as compared to litigation.
3. Relies on co-operation and focuses on reconciliation thereby reducing the stress brought on by familial conflicts. While the process is not aimed at reconciling parties that have decided to go separate ways, it aims to repair some of the damage to the relationship so that positive future interactions are possible. The adversarial nature of litigation makes this impossible.
4. Mediation ensures a quicker resolution of the family conflict taking an average of 3 to 6 months’ (depending on the nature of the conflict) unlike litigation which can take several years of back and forth in court.
5. Allows parties to ventilate issues they ideally wouldn’t be able to in a litigation process.
6. Allows the parties to communicate with the other disputant(s) with the mediator serving the role of helping the parties to improve their understanding. This makes the process more constructive.
7. Ensures parties have equal time to ventilate their issues especially as the mediator assists to foster an understanding but also ensures the conversation is not one-sided at any point.
8. Mediation is future focused which is especially important where there are children involved. Effective co-parenting relies on the ability to continue to communicate and mediation helps to preserve the relationship and make this possible.

Stages in a Family Mediation

1. The Pre-Mediation stage- (Mediation Information & Assessment Meeting (MIAM). The mediator schedules quick, separate meetings with each disputant to ensure that they have an interest in mediating and that each party has realistic expectations of the process.
2. Initial meeting & Collection of Information. Once instructions to undertake the mediation are established, the mediator will then meet with either the disputants or their advocates and request for a more detailed outline of the issue. The mediator collects all necessary information and documentation from the parties. This gives the mediator a better understanding of the broad situation and more importantly, each parties’ perspective of the conflict. After this meeting(s) the mediator will schedule the 1^st joint sessions.
3. Separate & Joint sessions. Some conflicts require that the mediator has joint and separate sessions with the disputants to ensure that they are always getting the information they need from all parties. Where there are children involved who can express themselves, the mediator may schedule meetings with them.
4. Bargaining & Generating Options. Since the parties are now committed to achieving a negotiated settlement, the stage is set for problem-solving. The mediator will help the parties generate options through brainstorming, hypothesizing, creating scenarios, mediator’s proposal among others.The mediator will take the parties through their Best case scenario (BATNA) and Worst case scenario (WATNA) as a guide to their brainstorming process.
5. Reaching an Agreement. The mediator will build on the issues that parties seem to concur on and mark that as done from the initial agenda. The mediator will also assist the parties to do a reality check to confirm that what they have agreed upon is realistic, and legal and that it is a sustainable agreement. Parties may agree on issues fully or partially. Whatever the agreement is, the mediator will record the same for the parties to sign. If there is no such agreement, then the parties will discuss the next steps for them.

Conclusion

Family mediation goes far beyond settlement and focuses on the relationship, views, values, interests, emotions and needs of the parties. Even more importantly, it focuses on these for the family members directly involved in the sessions and members of the family who are indirectly involved such as children. While mediation is beneficial for the vast majority of people, mediation may not be right where there is threat to life or property until such threat has been dealt with legally and there are measures in place to protect the life and the interests of the property. Where parties have already begun litigating, it is not too late to enjoy the benefits of mediation. The litigation process can be paused to allow the parties to mediate. The parties can also engage in Court Annexed Mediation which the Kenyan law and judiciary have embraced through Article 159 of the Constitution of Kenya and Sections 59A, 59B & 81 (2FF) of the Civil Procedure Act.Please click here to download the alert.

How can we help?

Our qualified mediators under CM Advocates LLP, Wealth & Private Clients Business Unit have extensive f Family Law experience and can assist clients to reach resolutions about Contested succession & Probate proceedings, Divorce & Finances (including complex financial situations, Cohabitation issues, Parental Responsibility Agreements & Matrimonial Property Division Mediation can take place virtually (via MS Teams) or in person. Our mediators are industry professionals meaning family law experts will mediate family law and succession disputes whilst corporate/ commercial experts will facilitate commercial/ family-owned business disputes. The clients are guaranteed qualified, well-informed, tested and proven yet practical solutions suited to their unique circumstances. We will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas. Should you have any questions regarding the subject of establishing a blind trust or a family trust, or related topic, please do not hesitate to contact  us on law@cmadvocates.com or dgichuru@cmadvocates.com

Contact Persons & Contributors

Dianah M. Gichuru –Partner & Head of Unit Nelima Walubengo- Senior Associate

Disclaimer

This alert is for informational purposes only and should not be construed as legal advice.