Private Mediation: A Smarter Path to Resolving Disputes 

In the modern interconnected, fast moving and dynamic world, disputes are inevitable. The fairest attempt to address disputes by pragmatic contractual documents and realistic expectations do not always avert disputes. According to Johan Galtung, disputes arise because of structural, relational, and behavioral factors. The disputes will present themselves in commercial transactions, employment relationships, family business, construction projects, or general disagreement stemming from business interactions. The conventional approaches to dispute resolution mechanisms such as avoidance, fighting, litigation often escalate into conflict, broken relationships, and costly realities for disputants.   

When the real cause of dispute may be rooted in relational, situational, and structural challenges, the conventional methods of resolution such as litigation do not address these challenges satisfactorily or at all. While courts continue to give a good attempt at addressing these challenges, the Court option remains costly, lengthy, adversarial, emotionally draining and often does not address the root causes of dispute.

Aware of these, the Judiciary, through the Court Annexed Mediation project, has done a fair job in encouraging the use of mediation. Even then, parties still would prefer not to be in court in the first place. In many cases, parties emerge from court processes with damaged relationships, disrupted operations, and significant financial strain. 

Mediation continues to be one of the answers to the challenges of disputes. It is a voluntary, confidential, and consensual process where parties engage with a neutral third party (mediator) to assist them in reaching a mutually agreeable solution to the dispute.

The mediator's role is not to order parties around or direct them; instead, it is to facilitate communication between the disputants to enable them to reach a settlement that is agreeable to all. Unlike litigation or arbitration, mediation is not focused on determining winners and losers. Instead, it prioritises dialogue, understanding, problem-solving, and preservation of relationships.

With the surging numbers of cases backlog, the Judiciary came to the realisation that the solution to case backlog is not to be found by adding more Courts or Judicial officers. Instead, it is through adoption of alternative dispute resolution mechanisms as a cultural practice within the Country. This explains why the Courts are encouraging the use of Mediation, Alternative justice systems with a view to create a culture of alternative dispute resolution in the Country.  

Businesses and individuals are increasingly seeking faster, cost-effective, and less confrontational methods of resolving disputes. One of the foremost approaches to this is adopting private mediation as an essential tool for modern justice and commercial stability.

The recent debate between lawyers and mediators should not make us forget the value of private mediation to businessmen and women in resolution of disputes. One of the surest approaches to countering the challenges posed in the recent debate is to consider trusted and globally recognised institutions to undertake private mediation.  

In Kenya, the Nairobi Centre for International Arbitration (NCIA) continues to champion mediation as part of its broader mandate to promote Alternative Dispute Resolution (ADR). The Centre provides a structured and credible platform through which parties can resolve disputes efficiently and professionally under internationally aligned standards. 

NCIA administers private mediation proceedings under its Mediation Rules, which are designed to provide parties with clarity, flexibility, confidentiality, and procedural efficiency throughout the process. The Rules allow parties to retain control over the outcome while benefiting from the guidance of trained and experienced mediators.  

One of the greatest strengths of private mediation is its ability to preserve relationships. In commercial environments, preserving business partnerships, client confidence, and institutional reputation is often just as important as resolving the dispute itself. Private mediation creates an environment where parties can engage constructively rather than destructively, enabling them to move forward without the hostility often associated with court battles.  

Private mediation also offers significant cost and time advantages. Lengthy disputes can paralyse businesses, delay projects, strain resources, and create uncertainty. Through private mediation, disputes can often be resolved far more efficiently, allowing parties to focus their energy on growth, productivity, and continuity rather than prolonged conflict. 

Equally important is confidentiality. Unlike court proceedings, mediation discussions remain private, safeguarding sensitive business information, reputations, and commercial interests. This is particularly valuable in sectors where trust, brand image, and ongoing relationships are critical. 

As Kenya continues to position herself as a regional commercial and investment hub, efficient dispute resolution mechanisms will remain central to investor confidence, ease of doing business, and economic growth.

Private mediation therefore represents more than an alternative to litigation. It is a forward-looking approach to justice that prioritises collaboration over confrontation and solutions over stalemates. The future of dispute resolution is increasingly shifting toward processes that are practical, accessible, and relationship oriented.

Through private mediation, parties are empowered not only to resolve disputes, but to do so with dignity, flexibility, and lasting impact. At NCIA, we believe that disputes do not always have to end in division. With the right process, they can become opportunities for understanding, restoration, and sustainable resolution. Ultimately, the best disputes are not those won in courtrooms, but those resolved through understanding, collaboration, and mutual agreement.

Dr. Henry Murigi, Ph.D.

Nairobi Centre for International Arbitration (NCIA)

Where disputes meet resolution.