Mediation, the way forward.

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To understand mediation, we should first know what it is. Mediation is a process in which a neutral third party (Mediator) assists in resolving disputes between two or more parties.

Locally known as Abahuza, the role of mediators is to foster alternative dispute resolution through facilitating voluntary settlement of a case out of court. To be Umuhuza (or a professional mediator), you must possess a bachelor’s degree in any field. In total, Rwanda has 165 professional mediators to date who secured the Chief Justice’s approval to start practicing. Some 250 others have also attended the mandatory 6-month course in mediation but they’ve yet to receive the green light from the Chief Justice authorizing them to practice or have not sought it. Apart from cases that are criminal in nature, Abahuza can facilitate the resolution of any case regardless of the amount involved. This is contrary to Abunzi (community-based conciliators) which cannot adjudicate cases whose value exceeds AFrw3 million. There is a total of 17, 941 Abunzi countrywide.

As shown in the ALTERNATIVE DISPUTE RESOLUTION POLICY dated September 2022. Traditionally, Rwandans took a problem-solving approach to justice anchored on community participation in a variety of dispute resolution forums. Citizens resolved conflicts of all kinds in families, in the neighborhood, and sometimes before leaders at different levels of the administration, in a manner that safeguards peace, rebuilds relationships, and consolidates social cohesion.[1]

The law relating to the procedure of civil, commercial, labor, and administrative cases was amended in 2018 and creates a room where a court registrar, judge, or private mediator can mediate parties at any stage of court proceedings before the final decision of the court. Afterward, the Court-annexed mediation system was endorsed by the policy adopted by the Government of Rwanda in 2022 as one of the existing initiatives to build on in expanding and enhancing the use of mediation in dispute resolution.[2]

In an event, the Supreme Court certified nearly 100 graduates in mediation practice back in 2022, through the course that was introduced to help empower interested degree holders with mediation skills as a way of enhancing a culture of mediation in dispute resolution. Different officials showed that mediation among ADR (Alternative Dispute Resolution) mechanisms, is the new direction of the justice sector to solve disputes. Chief Justice Emeritus Prof. Sam Rugege called on professional mediators to put to good use their skills to help promote peace in society. “This should promote peace in the community and contribute toward prosperity and development,” he said. “Mediation is not only for cases that have been brought to court but those that are in the community as well.” Chief Justice Faustin Ntezilyayo said professionals in mediation will impact the judiciary and country positively. Officials are keen to see mediation gain greater recognition and acceptance in society, saying it would help save judicial resources and free up judges to concentrate on more complex cases.[3] 

I remember while in class, studying the course of mediation, the lecturer emphasized telling us that, the country has taken a new direction of promoting non-judicial mechanisms to solve disputes. And he added that mediation is a new thing due to the judicial ways we were used to. He kept on emphasizing that we should encourage the disputing parties to use mediation because mediation promotes a good relationship after the dispute is resolved. After all, it is a party-centered dispute resolution mechanism.

In his opening remarks of the Hon. Chief Justice during the alternative dispute [4]resolution symposium dated 09th -13th, October 2023. He mentioned that mediation has proven to be a very successful tool that is having a significant impact. Since the implementation of a fully-fledged mediation scheme into the civil courts in 2019, Courts have resolved over 4368 cases with a significant amount of money registered that would have stayed in Court dockets for a longer time if options for litigation were taken. On another note, it is worth pointing out that over 250 accredited mediators were enrolled on the list of Court Mediators and some of them have started getting involved in mediating cases that are referred to them, a practice we want to entreat the rest that have not ventured into to do so. Similar to the expansion of plea bargaining, mediation in civil cases is heading to a better path thus both increasing the efficiency and accessibility of justice in Rwanda.[5]

It is worth mentioning that, an accredited mediator; he/she is a mediator who is not a Court staff, admitted to the list of accredited mediators published on the website of the Judiciary. The majority of them are lawyers, among them; they include, those in baking and finance, business and administration, engineering, accounting and finance, geographer, to mention a few. They are in different professional organizations like; the Rwanda Bar Association and Professional Bailiffs Association to mention a few.[6]

Instructions of the President of the Supreme Court governing court mediation in civil, commercial, labor, and administrative cases, N° 001/2019 of 05/12/2019 in Article 9, on The Role of the mediator in mediation illustrates what the mediator should explain to the parties;[7]

The mediator explains to the parties and other participants in the mediation the process of mediation and ensures that they comprehend the process. The mediator is duty-bound to explain to the participants to the mediation his/her role in the mediation process and the principles governing mediation. The mediator helps parties to communicate and share information and ideas and encourages them to explore options for a mutually beneficial resolution. The mediator may request the parties to provide and share documents, briefs of the case, and suggestions for settlement of the dispute. The mediator helps the two parties to explore their needs for a settlement to be reached, he/she looks into the interests underlying the dispute and allows the display of emotions such as anger, disappointment, sadness, trauma, or other kinds of emotions.

The mediator may meet and communicate with parties together in a joint meeting or with each of them in a private meeting with or without their advocates.

The mediator conducts mediation with fairness, providing equal opportunity to be heard and to participate in the process, and to seek legal advice or any other advice before settlement.

The article 10 of the same instructions talks about the duties of the mediator. The mediator must be neutral in fact and in appearance before the parties he/she is mediating. The mediator is neither an expert who gives his /her opinion nor is he/she an arbitrator.

The mediator has no competence to decide on how the dispute should be settled. In case there is no settlement reached, or if parties failed to resolve all the issues in the dispute, the parties may request, verbally or in writing, a mediator’s proposal for a settlement. The parties may not accept the mediator’s proposal, and the mediator may refuse to give his/her proposal without giving any reason. The mediator coaches teaches, leads, and sets the tone for better communication between the parties. The mediator helps the parties to prepare a settlement agreement that addresses all issues discussed and proposed solutions enforceable without any further dispute.[8]

In the first case, I worked on; I was in an academic internship working for my bachelor’s degree. It was in a Non-Governmental Organization specialized in human rights. Even though disputing parties mostly choose judicial means to solve their disputes. In my current assignments as a legal assistant, I encourage parties to mediate which most of them reject. As I was taught to be patient as in the mediation process, we have to be patient with the client.

Despite the challenges, mediation is starting to gain popularity country-wide. Due to the mobilization done on the ADR policy, the citizens are considering mediation as it is requested to them by the court staff and advocates.

Mediation has a lot of advantages, like one of them is it keeps the existing relationship between parties. Mediation also because the agreement is reached due to the efforts of the parties and their willingness to solve their dispute, the decision is final and the dispute is considered resolve for good and no future appeals.

Mediation is the way forward because we are in the era where time is so expensive and judicial ways consume time. Choosing mediation is choosing to not waste time and to keep the existing relationship. Disputes should be a comma not a full stop to the existing relationship or the future one.

In mediation process there can occur some challenges like resistance to mediation, emotional dynamics, power imbalance, and ineffective communication to mention a few. As a trained mediator or as one of the parties in the mediation process, it is better to show willingness to make the mediation process possible. It takes the willingness of both parties to go to mediation, it should be in that spirit also when it is time to solve the dispute at hand.

The courts have already a backlog of cases, it is the responsibility of all of us to encourage ourselves to solve our disputes amicably or through the channel of mediation. The existing relationship is more valuable than the current dispute.

 

 

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