Why mediation trumps suits in settling marriage disputes

Divorce suits are hostile and dramatic in some cases, exposing spouses to public ridicule. PHOTO | FOTOSEARCH

What you need to know:

  • The Kenyan law gives couples alternative methods to resolve rows before opting for court battles.

There is a rising rate of divorce in Kenya and globally, as couples rush for annulment before exploring other options available to them. There are some marital issues that can be solved without getting into a hostile and dramatic court process.

While counselling gives couples some direction and helps in decision-making, mediation is an alternative dispute resolution mechanism that can be resorted to in order to save a marriage.

Mediation is legally recognised and enforceable while counselling is not recognised by law. This means parties may renege on their previous agreement with counselling while during mediation the process leads to what is known as a settlement.

Mediation can also be a softer tool to resort to during a divorce process. This means that the couple can iron out contentious issues such as matrimonial property and child custody through this process.

During mediation, the main goal is to reach a win-win settlement and therefore a lot of legalities are kept out of the process. During a legal process, the party that stands to win the case is the one with a more sound legal argument despite the end result.

In a court process there is a loser and a winner and most of the times, the relationship may end up being sour.

However, in a marital mediation, there is consensus even on contentious issues, therefore, salvaging the relationship.

This means even if parties mutually come to a decision to divorce, the friendship is preserved for future purposes. It is quite possible to remain good friends even after a divorce. However, it is even better to salvage the relationship before opting for divorce.

Parties must be very cautious of the kind of mediator they choose to mediate the dispute. An unskilled mediator can actually fuel the fire and make the dispute worse than it was in the first place. Therefore, avoid mediators who are likely to be biased in their outlook or have a strong opinion on the dispute. The mediator’s role is not to give one’s opinion but instead allow the two parties to reach an agreement. A good mediator should have no conflict of interest in the matter at hand or closely associated with either one of the parties. Parties should opt for a professional mediator as he/she is trained and is unlikely to take sides in a dispute.

The Constitution and the Marriage Act encourage the use of mediation.

For a marital mediation to work, both parties must be fully committed to the process and furthermore, enter into it with the aim of attaining a win-win solution.

A professional mediator will take you the entire process and also have the skills to intervene when the dispute gets out of hand.

Issues that couples can mediate on are worse and diverse.

However, the most contentious issues would include matrimonial property, custody of children and co-parenting.

Couples can agree on the best way to raise their children, which schools to take them, visitation rights and so on. The entire agreement is filed in what is known as a mediation settlement.

Mediation can save more marriages and furthermore, it can help parties avoid bitter divorce processes.

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