Embedding Mediation Education and Teaching in The Training of Lawyers
Law school faculties must adjust their legal education curriculum to the times.
Key Words: Mediation training, Mediator, Lawyer training, Creative lawyering
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Mediation education and teaching in the training of lawyers
Pedagogical training and development aims to enhance the learning centered culture and the quality of teaching and learning as well as support the development of teachers’ pedagogical competence.
Basic pedagogical training emphasises starting with the known and moving into the unknown. The majority if not all of the trainees at institutions of higher learning come from a background of cooperation when in differences or have at least experienced this. Homes advocate for sharing, Christianity, Islam and Hinduism advocate for forgiveness, peace and balanced living, schools advocate for peer education, and nowadays, the Nation is an advocate for reconciliation.
Mediation, adjudication and arbitration as approaches are not foreign to Kenya. As non-court dispute resolution mechanisms, they offer the opportunity for win-win settlement and higher satisfaction to all parties. Customarily, elders within local communities use all these processes in their day to day to restore order in their communities. Village and estate officials use them in settling neighbourhood disputes. Through such techniques, major delays in construction and public works projects have been averted. With neutral third parties, employers and employees sit across the table and shake hands to diffuse disruption at work.
Surely, it is not impossible to steer young lawyers in their training into a new paradigm of dispute resolution. Actually, contest while generating the adrenaline thrill to the Advocate who is paid to offer the service, is exorbitant and exacerbating to the client who incidentally is due to pay for the service.
Mediation works on many subtle levels, which means that its teaching calls for a greater appreciation of social dynamics than typical lawyers are exposed to while in training. This also means that many law school professors would themselves require a reorientation if they are to build these highly responsive new advocates.
The Kenya School of Law/Kenya Institute for Public Policy Research and Analysis September 2019 study on ‘Factors influencing students performance in the Kenyan Bar examinations and proposed interventions’, recognised the dynamism of legal practice, the need for training lecturers on pedagogy and proposed engagement of experts in the postgraduate KSL Advocates Training Program through use of guest lecturers prior to students sitting the final written Bar examinations – “to elucidate and clarify certain concepts based on their practice and experience”. In addition to pupilage, this presents the opportunity for law graduates to interface with mediation practitioners.
The new non-court dispute resolution paradigm will open up new careers to legal trained minds. Today, Kenya and a host of countries across Africa are host to the innovative Court-Annexed Meditation (CAM) schemes. The change of the dispute resolution landscape is opening up new vocations and career choices for lawyers. From mediation registrars to membership of mediation accreditation committees to mediation clerks to mediation trainers, to researchers, to legal aid experts and to setting up a mediation practice. The efficiencies afforded by online dispute resolution (ODR) remain untapped, calling on to legal tech developers. Government agencies, non-state actors, religious bodies amongst others require these talents.
After a successful pilot with 55.7 percent and 53.8 percent settlement rate in Family and Commercial Divisions respectively, in 2018, the Judiciary gazetted Practice Directions then rolled out Court-Annexed Mediation from the High Court to 10 Counties; Nyeri, Kakamega, Kisii, Kisumu, Mombasa, Nakuru, Eldoret, Machakos, Garissa and Embu. The rollout was aimed at expediting the reduction of the backlog of cases. Cases taken through Court-Annexed Mediation averaged 66days. A whopping Sh2.4 billion had been released into the economy as of July 2018 through the pilot. This not only makes client cents and business sense, but also economic sense!
Embedding more creative lawyering skills
We may choose between changing the course of the river, or choose to continue excavation of the debris we dump uphill, at the downhill. We may choose a more amiable, collaborative approach or add fuel to the adversarial approach as we keep on dusting decade old files, while adding newer wine skins still headed for jam-packed courts.
In our setting, the legal fraternity, its indoctrination and training has the potential to be a powerful partner. Law school faculties must adjust their legal education curriculum to the times, not only by designating a stand-alone unit of mediation in the first years but also by giving mediation prominence and integration throughout the course. Internships, assessment and examinations should reflect this new reality.
This, backed by The Constitution of Kenya, Article 159(2)(c) which encourages courts to promote alternative forms of dispute resolution, specifically stating that “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)”, will be the gamechanger to Kenya’s legal sphere as we have known it.
Mediation knowledge and training, first of all builds the critical life skills of empathy, creativity and problem-solving in learners. Students develop interest and capacity to always see the bigger picture. As practitioners, they can, with confidence choose mediation first for their clients, even when a dispute does, at the end of the day have to become a full blown court battle.
Clients will come to Advocates because they have a problem and their business flows in the path of value. That is, to where the more creative approaches to solving problems are offered.
Learned friends, it is not a matter of what, but when to make your lawyering green! As a longstanding respectable profession, it is more efficient for our legal fraternity to go green or becoming extinct. While the more senior generation may have tinkered in contemplation, the new crop must start off green. For a green spotted leopard has even greater appeal.
CPM Wangari Kabiru, Chartered Mediator. Ms. Wangari is a practitioner who advocates for greener practice and enjoys time as a game design thinker. This article was first published in the blog www.wasilianahubmediators.co.ke, 2018 HiiL Innovating Justice finalist. @wasilianahub.