“When it works, it truly is wondrous. It’s easy to see why a mediator feels like a wizard with supernatural powers, enabling lambs to lie down with lions.”- Jerry Lazar(Magician and mediator)
The Vis East Moot Foundation Inaugural Young International Mediation Competition (YIMC) was organised to take place from the 2nd to 8th of August 2015 in Hong Kong. A team of four students from the Strathmore Law School (Christopher Ndegwa, Evans Musau, Irene Otieno and Anne Mwangi) represented the law school in the competition after having being coached by Balla Galma and Jack Owino from SDRC. The competition was structured to include a 2-day training on the basis of mediation before commencing the three day competition.
Saturday 31st July: A day before the intended date of departure and the deficit faced by the Strathmore Law School students who were to participate in the competition was KES 150,000. Our chances looked slim.
Monday, 11:30 pm: We were watching the city of Nairobi fade into the distance, Hong Kong bound (after concerted efforts and a plethora of prayers). We landed in Hong Kong at about 6:30 pm on Tuesday evening. Having missed two days of training, we knew that we had to roll up our sleeves and put our shoulders to the wheel.
The competition kicked off on Wednesday morning at 9 am with teams mainly from India, Australia and Kenya. Sessions were conducted at 9 am, 12 noon and 3 pm. At the end of each session, the judges would give the mediator and the mediation counsel feedback appropriately. This was done with the goal of the betterment of all parties for the next rounds. Each team comprised a minimum of 3 people. Each team had to have a designated mediator who would play this role throughout the competition as well as a counsel and ‘client’. The competition was structured in such a manner that no mediator would mediate a session in which their teammates were participating as counsel with each member of the team being judged according to their role in the process.
The competition problem that had been supplied to the participating teams was one that was fairly simple but evolved as the competition progressed. Before each session, opposing mediation counsel would be furnished with different pieces of confidential information that would alter their interests going into that day’s mediation session. The judges would then assess the manner in which the mediation counsel incorporated the new information into their negotiations while still making an effort to protect their client’s previous interests.
The feedback from the judges throughout the competition reiterated the fact that mediation, unlike litigation or arbitration, ideally ought to lead to a win-win outcome for both parties. This placed a larger emphasis on negotiation skills as opposed to demonstration of legal prowess as is customary with litigation and arbitration centered competitions. Furthermore, the judges underscored the importance of creative thinking in terms of option generation on the part of the mediation counsel as well as their willingness to give ample time to their client to present their case. This was an important distinction as in real life situations; it is the parties who ought to agree to solutions tabled before them and not the advocates.
After 3 days of back to back rounds, the SLS team made it to the semi-finals of the competition where they faced the National Law University-Delhi. The latter emerged victorious by the length of a whisker (as per the judges’ commentary) and went ahead to be declared as the best team in the competition.
The awards were presented during a dinner that was hosted at the Hong Kong Club. In attendance were prominent persons in the realm of ADR from Hong Kong, Germany, the UK, Australia and the US. The atmosphere of fun and camaraderie engulfed everyone as the judges, organizers and participants of the competition mixed and mingled freely over light music and dinner. The judges commended the participants and honored the winners of various awards such as Best Mediation Counsel which was scooped by Christopher Ndegwa, 4th year SLS student. The team was also awarded the position of 2nd Runners-Up.
The experience was a revelation to the possibility of amicable and non-adversarial dispute resolution. The team gained first hand insight to mediation in practice- understanding what is required of the process and how to engage with parties. Given that the competition attracted global participants we were able to interact with different people from the onset, opening us up to understanding how culture can influence thinking.
The team departed from Hong Kong having understood the large heights to which ADR in Kenya ought to measure up to. “Mediation is the future” – Carl, YIMC moot judge. Will Kenya embrace this future?
*Guest written by Christopher Ndegwa and Evans Musau