Mediation Strategy For Resolving Issue On Child Custody


Justice delayed is justice denied is a famous quote by William E. Gladstone. The legal issue identified during the externship was that concerning child custody. Who is legally entitled by the law to have the child? Many litigants resorts in the legal process (court proceedings) to be able to acquire custody of the children but this has been quite a journey for most of them. They claim the process is quite tedious and takes most of their time. From all this I got an impression that the simplest way in which parties can acquire child custody is through mediation. Mediation is one of the alternative form of dispute resolution that according to Moore it involves the intervention into a dispute or negotiation by acceptable, neutral third party who has no authoritative decision making power to assist disputing parties in voluntarily reaching their own mutually accepted agreement on the issue in dispute.

Bercovitch on the other side defines it as a method of conflict management where conflicting parties gather to seek solution to the conflict with the assistance of third party who facilitates discussion and the flow of the information and thus aiding in the process of reaching an agreement.

Mediation is the best way to resolve issues on child custody since it’s the cheapest way, confidential, most effective way of resolving disputes and most importantly it aims at maintaining relationship.


The Children Act defines custody in relation to a child to mean the parental rights, duties and responsibilities, with respect to possession of a child. The root cause of contestation of child custody is normally divorce. When parents file for a divorce cause, the issues that arise is normally who will get to stay with the children and how they will be maintained and which parent. Usually parents need to first conclude the divorce causes in court before they process to claim custody of the children. In the process children may suffer if left with one of the parent who may not be capable of raising them nor providing their basic needs may lead them to moving to the streets in such of a better life. Traditionally, when parents could separate, the community would prefer the mother to remain with the children since they are capable of providing for them compared to the father who may move to acquire another family.

The commencement of the Children Act, the courts use the guiding principle of best interest of a child in granting custody. Custody can be given to anyone who is closely related to the child (ren) who applies for custody but has recent or actual custody for a period of three months before making the application and has permission from either the parent or guardian who can be able to show reasonable cause why custody should be granted to him or her. Minors are placed under the custody of the mother unless there is sufficient evidence to discredit her. Alternative dispute resolution through mediation comes in to remedy this issue makes it fast to acquire custody of the child (ren). The mediation process takes up to sixty days to resolve a dispute referred to it.

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Legal framework on ADRUnited Nations Charter

The UN charter stipulates, the parties to any dispute…shall, first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration judicial settlement, resort to regional agencies or other peaceful means of their own choice. The constitution According to the Kenya’s 2010 constitution, the courts and tribunals in exercising its judicial authority shall be guided by alternative forms of dispute resolution.

The Civil Procedure Act

The courts at any given moment may on request of the parties concerned or where it deems it appropriate to dos so or where the law requires direct that any disputes presented before it be referred to mediation.

Mediation (Pilot Project) Rules 2015

Entails rules to be applied to any disputes that had arisen prior to commencement of these rules and all disputes arising upon the enactment of the rules where parties have agreed to the application of mediation. It also defines domestic mediation as mediation agreement conducted in Kenya. The individuals in mediation are nationals of Kenya or are habitually residing in Kenya.

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Why mediation and not litigation.

  • The parties to a conflict who choose to go to mediation have the reserved freedom of walking out anytime they are not satisfied with the process. This is not so with regard to litigation, once parties begin the process, they are to remain in it until it is completed unless in some rare occasions the parties come to an agreement to settle the matter out of the court.

  • Parties represent themselves in a mediation process unlike in litigation parties to a conflict have to seek the services of an advocate.
  • In mediation, the decision as to the settlement of the conflict is that of the parties themselves, however in litigation it is the judge or the court, which makes adjudication on how the dispute is to be resolved.
  • The mediation process has as its central goal the satisfaction of all the parties to the dispute. Litigation tends to favor the one mostly wronged in the view of the court. It determines who is in the wrong, then proceeds to punish or lay liability on the other party. Only one party wins in litigation as opposed to mediation where it is a win-win situation.
  • There is a lot of freedom bestowed upon the parties in mediation to choose or come up with the rules to guide them in the mediation. On the other hand there are fixed and rigid rules on how to go about the litigation process.
  • In mediation the parties have room to agree on or choose the mediator who will facilitate the process. This is not true of litigation where parties are not allowed to be involved in deciding who the judge in their case would be.
  • The aim in mediation is for parties to convince and win each other over, while in litigation the aim is to convince and influence the judge towards one party’s own favor.
  • In mediation the focus is on the self, to bring out your interests and then to see to it how they can best be satisfied. In litigation the finger is pointed at the other party, bringing out the wrongs they did to you so that you can be compensated.
  • All parties in mediation tend to be on the same level at the negotiation table, whereas litigation favors the more able parties, who can hire the services of the best lawyers.
  • There is a lower risk of bias and influence by the mediator for the process to go in a particular direction because the mediator is neutral, and strives so to be. He is a facilitator. In litigation there is a high risk of the judge being bias towards a certain party, owing to the fact that the decision-making power rests on him alone.
  • The characteristic of mediation is that it is a highly confidential process whereby no information can be divulged without the consent of the parties. This is not so in litigation where information on cases is given out to be published in law reports, periodicals and journals which are accessible to the public.
  • There is room left in mediation for continued mediation, while in litigation there are rules of procedure like Res Judicata which cause a matter never to be brought up for litigation again.

Disadvantages of ADR

Biased decisions. At some point a mediator may tend to lean on one side thus making the process difficult. Do not set precedents neither does it define norms nor promote a consistent application of legal rules. Lack of proper guidelines relating to mediation. Despite the fact that the court encourages parties to choose alternative means of resolving dispute, such mediation rather than litigation. However, there is an argument that the legal environment is unable to comprehend the structure and epistemology of mediation such that even after mediation,parties have been encouraged to mediate their conflict, the result of the mediation have to be tabled in court for ratification.

Insufficient budget allocation and absence of separate institution. Alternative dispute resolution is attached to the judiciary thus lacks autonomy. There is insufficient allocation of budget towards the department. Lack of knowledge and experience. There are a couple of mediators in Kenya. This make it difficult even for one to take their case through mediation. Interest in legal proceedings. Litigants prefer court proceedings since at the end of it there is entitlement to a relief.

Functions of a Mediator

A mediator is a neutral third party reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship; a perception that will redirect their attitude and dispositions toward one another. ” What functions of office does the mediator have that enable him to fulfill that objective?

  • A mediator as a catalyst: the mediator’s presence affects how the parties in the dispute interacted with one another. She was able to facilitate mutuality and understanding between the various parties. Her or his presence lends a constructive posture to the discussions between parties because the disputants would oblige to her directions in the negotiations.
  • The mediator was an educator: he or she may educate both parties in dispute in this case a father and a mother on the importance of custody being decided on the best interest of the child.
  • The mediator had the role of ensuring clarity in the discussion: The mediator does go through all the disputable issues and facts, as she had understood them when parties are story telling. Where the issues are not clearly understood, he takes the initiative to make them understand the process in general.
  • The mediator has the role of ensuring the process is systematic: The mediator has to ensure that the parties do not rush into discussing the issue in depth before clearly identifying all the issues and interests that are the cause of the conflict. If stages in mediation are mixed up, it may lead to confusion and therefore hamper the progress towards realizing a solution to the conflict.
  • The mediator as a prefect: The mediator is to see to it that the parties adhere to the ground rules that all the parties had come up with and agreed to at the start of the negotiations.

Court Annexed Mediation

This entails mediation process conducted under court. This is a pilot programme that has been recently stated. therefore it has not yet been fully implemented by all courts in Kenya. A case may end up in court annexed mediation if it’s filed at the Milimani Law courts high court under Family law division in Nairobi. itss then screened if it can undergo mediation. The screening process entails a range of internationally accepted criteria in use for mediation screening. the process of screening is examined by the mediation deputy registrar.

When a case is referred to mediation,The Mediation Deputy Registrar makes makes a decision on the case and notifies the parties within a period of seven daysHe will then nominate three mediators from the registrar of the Judiciary accredited mediators, and notify the parties of their names. The register is kept by the mediation Accreditation committee (MAC) which is an independent body established under the civil procedure act. Within seven days of being notified parties have to select their preferred mediator from the list of three previously given and informs the Mediation deputy Registrar in writing. The then appointed mediator will schedule a date of initial mediation and notify the parties on the date, time and place. One should note that he may chose a mediator who is not under the Mediation Accreditation committee. However the mediation settlement can be registered by the court and enforced s acourt order.

Problems Facing ADR

· Decisions are not legally binding. This acts a disadvantage since once the mediation is successful, the process ends not unless and until the parties tables out the result if the process in court for ratification. A party to the dispute may decide to proceed to court when not satisfied with the process.

  • Litigants prefer going to court than relying on ADR options. A few people would prefer their cases to be mediated since it offers a shared relief to both parties-win win situation.
  • Lack sufficient skilled mediators. This becomes a major setback because when we say people agree to settle their cases through mediation, there will be a problem since their re a number of them.
  • Application to enter into ADR process is voluntary; is not mandatory. If it were mandatory for the parties in cases concerning child custody to mediate before going to court then this would be sufficient. However this is not the case. One offers to be part and parcel of mediation out of his own will.


From the foregoing analysis, I am convinced that mediation has a part to play in the dispute resolution process in cases concerning child custody. I realize that mediation is a suitable alternative compared to litigation. When I compare the parties who go through the mediation process as opposed to those who rely on the litigation process, I realize that the former rather than the latter go their way more satisfied. In other words there is minimal hostility between parties after the mediation, whilst after litigation the losing party will walk out of court a bitter person whose emotional needs and other needs have not been fully addressed. In as much there are legal framework governing alternative dispute resolution, there isn’t much work on this forms of dispute resolutions. The statutes has been slowly being implemented but the progress can be said to be bearing fruits.


Creating awareness on ADR. The judiciary is progressing accepting alternative means of dispute resolution such as mediation in reducing backlog of cases. Reforms in the justice system. If alternative dispute resolution is treated as a separate institution, then perhaps people will adjust to it. The also ought to provisions stipulating that children matters shall be dealt through mediation. This will play a big role in reduction of backlog of cases. Providing mediators with training. Employing more mediators and offering training will also make litigants choose mediation as compared to litigation since the former is quite cost effective and is also a short process of dispensation of justice. Judges should be open and free to suggest ADR option. In as much as recently judges have been for the idea of alternative dispute resolution, they should be free to advice parties to opt for alternative dispute resolution. In every successful mediation case there out to be published so as one can see the progress being done.

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