By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*
There has been progress towards enforcing the foregoing standards on ethics, integrity and best practices in mediation as set out in various laws, codes and institutional rules on mediation. The United Nations Commission on International Trade Law (UNCITRAL) envisages the use of mediation in management if disputes arising in the context of international commercial relations and has formulated mediation rules towards this end.
The UNCITRAL Mediation Rules contain salient provisions geared towards upholding ethics, integrity and best practice in mediation. They stipulate appointment of a mediator with relevant professional expertise and qualifications and ability to conduct the mediation. They also envisage the appointment of an independent and impartial mediator. The rules also require a mediator to maintain fair treatment of the parties while conducting mediation proceedings. Further, the rules require all parties to the mediation to maintain confidentiality in relation to all information relating to the mediation, including, if relevant, the settlement agreement unless otherwise agreed by the parties or where disclosure is required by the law.
Upholding ethics, integrity and best practice in mediation is also a fundamental requirement under the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention). The Convention provides the legal framework for enforcement of international settlement agreements resulting from mediation across jurisdictions. The Convention sets out several grounds that may warrant refusal to grant relief in terms of enforcing an international settlement agreement resulting from mediation. Such grounds include where there was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement.
In addition, this may arise where there was a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence and such failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the settlement agreement. It is therefore important to uphold ethics, integrity and best practice in mediation in order to ensure enforcement of international settlement agreements resulting from mediation under the Singapore Convention.
The International Chamber of Commerce (ICC) Mediation Rules also give prominence to ethics, integrity and best practice in mediation. The rules require a prospective mediator to sign a statement of acceptance, availability, impartiality and independence before appointment or confirmation. A prospective mediator is also required to disclose in writing to the Centre any facts or circumstances which might be of such a nature as to call into question the mediator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the mediator’s impartiality. These provisions are aimed at upholding the ethical standards of independence and impartiality in mediation.
Further, in order to uphold competence, the rules require the Centre to consider the attributes of the prospective mediator including skills, training, qualifications, experience and the ability to conduct the mediation when confirming or appointing a mediator. The rules also require the mediator to treat parties with fairness and impartiality while conducting the mediation. In addition, the rules require each party to act in good faith throughout the mediation in order to uphold ethics, integrity and best practice. The ICC mediation rules also uphold the ethical duty of confidentiality and require the proceedings and any settlement agreement to be kept private and confidential and not be disclosed unless by an agreement of the parties or where disclosure is required by applicable law.
The London Court of International Arbitration (LCIA) Mediation Rules also seek to uphold ethics, integrity and best practice in mediation. In order to uphold competence, the rules require a prospective mediator to disclose his or her qualifications and past and present professional positions. A prospective mediator is also required to disclose any circumstances that may give rise to any justifiable doubts as to his or her impartiality or independence. In addition, the rules require all parties to a mediation to uphold confidentiality and privacy. This is to be achieved by ensuring that all mediation sessions are private and are only attended by the mediators, the parties, parties’ representatives and witnesses. Further, disclosure of any information regarding the mediation, any settlement terms or the outcome of the mediation is precluded unless agreed by the parties or required by law.
The Nairobi Centre for International Arbitration (NCIA), Code of Conduct for Mediators, also sets out fundamental ethical guidelines and best practices for persons appointed to mediate disputes under the NCIA Mediation Rules. Among the fundamental ethical requirements under the NCIA Code of Conduct for Mediators is independence and impartiality. Before accepting an appointment to act, a prospective mediator is required to disclose anything within his or her knowledge that may materially affect the mediator’s impartiality. The Code of conduct further requires a mediator to avoid conflict of interest or the appearance of a conflict of interest during and after mediation.
Conflict of interest in mediation may arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and either of the participants in the mediation process. The Code further requires a mediator to ensure that he or she has requisite competence required to mediate effectively before accepting appointment. Such competence in mediation can be acquired through education, training, experience and cultural understandings. In addition, the Code requires mediators to promote confidentiality, quality and fairness while conducting the mediation.
Upholding ethics, integrity and best practice is also envisaged under the Kigali International Arbitration Centre Mediation Rules. The rules require every prospective mediator to disclose any facts or circumstances which might affect or call into question his or her impartiality, independence or may be perceived to create a conflict of interest. Disclosure is also expected if such facts or circumstances arise in the course of the mediation. Further, under the rules, a mediator is expected to conduct the process with fairness to all parties and ensure that all parties have adequate opportunities to be heard. In addition, in order to ensure integrity and best practice in mediation, the rules require a mediator to terminate the process if the mediator determines that a settlement cannot be reached.
Another fundamental ethical requirement under the rules is confidentiality. The rules require every person involved in the mediation, including the parties, the mediator, and the Centre, to keep confidential all documents, information and materials as well as all terms of any settlement in connection with the mediation unless the parties expressly agree in writing or where disclosure is required under law. It is thus evident that there has been progress towards upholding ethics, integrity and best practice in mediation. However, some ethical dilemmas are likely to arise in mediation.
It has been asserted that the impartiality of mediators is often challenged by prior relationships with the parties or their emotional reactions to the parties’ behavior during mediation. Further, mediators often face the ethical dilemma of maintaining confidentiality in cases of possible illegal actions of the parties or the potential of unfair settlement, or where disclosure will convince the party to accept a settlement proposal. Further, since mediation is premised on voluntariness, ethical challenges may arise in cases of lack of consent due to coercion, mental disturbance or lack of information.
It has been observed that most mediators are often torn in between impartiality and the temptation to give solutions or direct the process toward more fair solutions and the tension between staying neutral and providing necessary professional legal or therapeutic advice. It has also been argued that ethical problems may arise where mediation is used by the parties to gain information, win time, or intimidate the other party. Mediators also often face competence challenges since in certain cases the skills that the dispute demands go beyond the mediator’s training and often involve interpreting psychological or emotional aspects of conflict.
In addition, in processes such as Court Annexed Mediation in Kenya, a mediator may face ethical concerns between the parties’ interests for fair and efficient process and pressure from the court to finish the case in time. Ethical problems may also arise in respect of costs and fees of mediation in instances where mediators charge exorbitant fees thus defeating the essence of mediation of facilitating cost effective management of disputes. It is necessary to address these concerns in order to uphold ethics, integrity and best practice in mediation.
*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.
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