INSURERS & MOTOR VEHICLE REPAIRERS SPARE PARTS MISUNDERSTANDING-IDEAL FOR MEDIATION.

WHO  SHOULD  SUPPLY MOTOR VEHICLE  SPARE  PARTS FOR REPAIR PURPOSES?

The Insurance Motor Industry and the Motor Vehicle repairers can be likened to brothers in business. The relationship is such that each needs the other to be able to meet their promises to their investors and to the  public to which they offer  services in their respective capacities.

The vehicle repairers in an effort to streamline operations came together under an umbrella body called Kenya Motor Repairers Association (KEMRA). This association is aimed at protection and promotion of members business through advocacy and instilling professionalism. It claims inspected and accredited motor repair centres and its vision is promotion of efficiency, effectiveness, safety, functionality and satisfaction.

The insurance industry also has an umbrella body called Association Of Kenya Insurers (AKI) which according to its website, has undergone metamorphosis since 1960s when it had various independent industry associations including Motor Association of East Africa .In 1987  the current association AKI was registered as a society being a non profit, consultative and advisory body . It purports to champion insurance growth and excellence; professionalism is one of its corporate values. The members are governed by a constitution with a Governance structure that executes its decisions through various committees the  motor committee being one of them.

Insurers are risk underwriters who manage the premiums collected from the insuring public so that enterprising members of society can go about their businesses without the burden of worrying about uncertainties of life. Motor  vehicle risks in Kenya are always on an upward spiral as a result of a vibrant economy ; a consequence of  a people with an uncommon enterprising spirit. The insurance the people want is one whose premiums are affordable and so well managed that if a risk occurs, indemnity is assured and there is timely resolution of all pre settlement requirements.

In  motor insurance, the insurers depend on expertise from different fields; examples being, insurance intermediaries,(agents and brokers) who sell insurance and explain what is covered plus recommending to the customer the Principal (insurer) who can underwrite the risk,  motor vehicle assessors and repairers to ensure that the damage is assessed and handled as per the agreed terms in the policy, barring any disqualifying factors. The insuring public, by transferring the risk to the experts in risk management,  has legitimate expectations.

The insurance industry has experienced some very low moments when some Insurers with high motor portfolio  collapsed, with only one managing a comeback  but still performing dismally.

The reaction to bad incidents affecting some insurers  has to some extent been a lot of finger pointing. Unfortunately this has resulted in sour relationships with crucial business partners;especially when perceived partner malpractices are managed  by implementing policies that are designed to tame the culprits. On the other hand,the partners insist that insurers should tame inside out by adhering to clearly set out principles that recognise professionalism and Insurance Laws and Regulations.

To a mediator this is an Ideal situation for intervention and requires the skills that can help both parties to come to the table,really listen to each other and view  the situation differently as a common challenge for mutually satisfactory win-win solutions. The spare parts misunderstanding is ideal as it has identifiable parties and each side is able to articulate its concerns.

From the objectives of both AKI & KEMRA, it is clear that  they agree on so many things a fact  a mediator can capitalise on. Common stated objectives and ideals provide the perfect reason to believe these particular disputants can cooperate and  be them against the problem.

The interests of both are really easy to pinpoint; the repairers want to offer quality services to  clients like the insurers and insurers want professionalism that engenders cost effective services to the customers.

The misunderstanding seems to have been borne out of mistrust which at times originates from wrong attitude to the issues especially, viewing problems as insurmountable. The mediator’s role is very good at digging up sources of mistrust which often turn out to be mere perceptions.

What is of particular significance in the spares debate, is the fact that there are other interested parties with a keen interest in seeing the issues resolved. This problem goes to safety of motor vehicles. Repairs not done up to standard do not just affect the insured party, but also the other road users  who can become collateral damage. A vehicle repaired under acrimonious circumstances is very likely to fall short of being returned to a reliable pre accident condition. The Government whose mandate it is to ensure safety, would be an interested party especially through the ministry of transport, and infrastructure which for this particular purpose works through the National Transport  & Safety Authority whose functions among others is national road safety management, motor vehicle inspection and maintenance of security on the roads.

                                                                                   (from Nairobi News .nation.co.ke)

If  either of the warring parties were told by the public that spare parts issues  could be a factor in an accident like the above, they would most likely react with  indignant denials, yet if you analyse causation of past incidents, it is very possible.

It  is therefore my view, that in a mediation, looking at  options in this kind of case would take on a wider scope and even pushing  legislative intervention would avail an avenue to workable solutions.

                                                                                                                          (from IOL.CO.ZA)

The grisly images like the above which are frequent in Kenya media would also be an invisible catalyst to drive the parties in reaching  the right solutions.

Why have I suggested Mediation to end such a conflict:

1. The parties have an interdependent relationship.
2. These are business people who have little time to waste either in litigation or  in prolonged conflict.
3. There are both service industries under public scrutiny and both are crucial services.
4. There is power balance between the parties.
5. There are opportunities to be resourceful and together build something better and mutually beneficial.
6. There is room to help each other in better management of their respective industries which would minimise loss and maximise profits on either side.

What would be  the suitable mediator position?

• Be neutral, understand the dynamics of the dispute and facilitate the process.
• Endeavour to be trusted and acceptable to both sides.
• Be capable of letting parties clearly bring out the interests underneath the party positions and also to establish common interests.
• Be good with directing proper internal reflection and minimising emotional outbursts.
• Be skilled at nudges that are designed to let each admit to its contribution to the dispute.
• Be good at reality checking and guiding parties to offering viable options.
• Validate both sides outlook and have them appreciate how much good they can do through consensus.
• Appreciate this cannot be resolved in one day sitting and that it may require a lot of innovation from each side and from the mediator.

Unlike dealing with 2 disputants, the mediator has to appreciate these are two powerful industries which are also regulated.At the end of all the posturing and wish listing, the parties should  be referred to their legal advisers to get clarity on some issues.

The relevant legislation which touches specifically on the issue at hand is the Consumer Protection Act No. 26 of 2012 Sections 44 to 52. The wordings in that section seem to have had the issues between Insurers and motor vehicle repairers in contemplation. The entire section is titled ” Repairs to Motor Vehicles and Other Goods”. It may not be addressing all the issues to this dispute, but maybe  it does give guidelines on how to address the issue of repairs and spare parts. Section 44 definitely addresses repair fee, but I am more interested in  the repairer warranty sections:

51. Warranty for vehicles

(1) On the repair of a vehicle, every repairer shall be deemed to warrant all

new or reconditioned parts installed and the labour required to install them for a minimum of ninety days or five thousand kilometres, whichever comes first, or for such greater minimum as may be prescribed.

(2) The warranty in subsection (1) is in addition to the deemed and implied

conditions and warranties set out in section 5.

(3) The person having charge of a vehicle that becomes inoperable or unsafe

to drive because of the failure or inadequacy of work or repairs to which a warranty under this section applies may, when it is not reasonable to return the vehicle to the original repairer, have the failure or inadequacy repaired at the closest facility available for the work or repairs.

(4) When work or repairs are made under subsection (3), the person entitled

to a warranty under this section is entitled to recover from the original repairer the original cost of the work or repairs and reasonable towing charges.

(5) A consumer who subjects any vehicle part to misuse or abuse is not entitled

to the benefit of the warranty on that part.

(6) No repairer shall refuse to reimburse a consumer because of the operation

of subsection (5) unless the repairer has reasonable grounds to believe that the

part under warranty was subjected to misuse or abuse.

(7) A consumer who is seeking reimbursement under this section shall return,

upon the request and at the expense of the original repairer, the defective parts to the original repairer unless, in the circumstances, it is not reasonably possible for the consumer to do so.

(8) An original repairer who is required to make a payment under this section

is entitled to recover from the supplier of a defective part any amount paid to the consumer under subsection (4).

 The issue in dispute between insurers and repairers is on who provides the spare parts. Some  insurers have started sourcing  spares directly from parts suppliers and contracting the repairers for labour only. Upon reading the provisions of the law above, there seems to be an intention, to  put the responsibility of guaranteeing repairs and the quality of spare parts  used on the repairers. This section would definitely protect the insurers on the issue of repairs and section 46 does protect on the issue of charges.

When this section is read together with section 5(3) of the same Act which is reproduced here below, then it makes me wonder whether motor repairer labour agreements only are an option at all.

5. Quality of goods and services

(3) Any provision, whether part of the consumer agreement or not, that purports

to negate or vary any implied condition or warranty under the Sale of Goods Act

(Cap. 31) or any condition or warranty under this Act is void.

(4) If a term or acknowledgement referenced in subsection (3) is a term of

the agreement, it is severable from the agreement and shall not be evidence of

circumstances showing intent that the deemed or implied warranty or condition

does not apply.

The relevant part in the above states that any provision in the agreement that purports to negate any condition or warranty under the Consumer Protection Act is void. So when Insurers buy spare parts and give to the repairers, the repairers cannot give a valid guarantee of the quality of spare parts fitted in a vehicle. If such guarantee cannot be given, then it would   negate the whole of section 51 of the  Act cited above.

That could be the guidance the lawyers would give. The only problem is that winning a legal score does not end a conflict; we would therefore go back to the mediator to help parties seek solutions. The solutions would depend among other things, on the facts,  worries and apprehensions identified plus weaknesses or strengths displayed in the process. The mediation process  seeks to  balance positions and also to address each party’s interests by engineering to have each side see the situation from the other’s side.

All issues are tabled by the parties and not the mediator, if the debate is on mark-ups by the garages or poor quality of parts supplied through the insurers, all has to be stated by the actual parties and not lawyers or mediators.

I refer back to where I discussed other stakeholders and Government being one of them  through its relevant institutions.

One bone of contention is that  fixed prices/premiums are affected by the Competition Act of Kenya. This  seems to have an overall negative effect on the ability of AKI to standardise the terms of players in the insurance industry .

The competition authority  under section 3(d ) in objects is to protect consumers.

Whereas section 21 (1) prohibits Restrictive Trade practices which among other things are such acts as would lessen  competition in Goods and Services, together the insurers and business partners can lobby for exemption under section D of the part on restrictive practices. The reasons would probably be that it is in the interests of the consumers of insurance services and in harmony with objective under section 3(d) of  the Competition Act   which is consumer protection.

Again, together with all stakeholders, the disputants can lobby to  have Government enforce membership to the lead Associations in the dispute so that all vehicle repairers can be members of KEMRA if they wish to be providers of insurance services. This would serve the insurance industry in that, the officials on both sides can have fruitful continuous discourse with each other. Both parties would be able to promote professionalism and maintain the highest standards which would be a marketing point for both sides.

The Matatu industry sets  a precedent where Government intervened to force membership to  Saccos in order to qualify to operate in public service vehicle arena.The important consideration from Government side was the public.

The current situation is really not serving either side and it is hurting the consumers of their respective services.

                                                                                    (reddit.com)

 

 

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Daily lessons in Mediation.

As Court Annexed Mediation becomes  more and more entrenched in Kenyan Jurisprudence, we are learning a bit more and more on mediation practices, challenges and our own local  best and worst practices.

Our “launching pad” so to speak , was emulating the best international practices.

We have applied the practices by reason of  -the no need to re-invent the wheel philosophy. Having done that, we all know that we at least have to set our own wheel thread size  that fits our terrain.

It is up to us to identify the potholes and rougher surfaces  and do what needs to be done to get a smoother ride, respecting the welfare of passengers(parties) on board.

For example, we may not always have the proper mediation rooms, but we can make the rooms feel right by our actions that will impact the mindset of the parties. The mediator should reach early and survey the room, adjust furniture to desired style and act like she is in the grandest boardroom.

When something is new  and trendy, the public will pay attention and want to hail it. There is a danger of turning anything welcomed with great anticipation into a passing fad unless the initiators are willing to stay the course.

There must be a clear  vision of  where the destination is and  the road or roads that  will lead there.

As human beings, we sometimes look for shortcuts and the court annexed mediation process is apparently not spared this human frailty. Observance of the mediation process fully by a mediator from  essential preliminaries, ensuring the conducive environment, respecting the parties’ time, duly observing the  bits that identify the process as a court managed process, explaining everything that needs to be explained, getting commitment and necessary consents, ensuring party understanding and trust in you and the process, and purposing to guide the parties in reaping all acclaimed benefits of mediation is much more exhilarating than getting a settlement or non compliance certificate by hook or crook.

The above quote summarises for me what my feelings about our court  annexed mediation are at the moment. We have the million thumbprints (best international practices) which should be respected and not tarnished or violated in any way; but we are also taking control and handling new challenges in accordance with our circumstances and adding fingerprints to the delicate clay.

Mediation is indeed a delicate process managed by skills that bring back humanity to business transactions and relationships. Active listening for instance cannot happen without empathy, respect, and  understanding being embedded in the process. The mediator may not be able to bring respect to the process without respecting self  by being competent, authentic, and generally ethical in a way that is obvious to the parties.

In  most of our writings advocating mediation, our mediators and the process, we invariably  cite international best practices as our standards, which is a very good thing. Even as we look at what is happening elsewhere to set standards, I highly subscribe to the idea that it is in applying and striving to meet the standard and marking our scorecard that we can truly learn.

We must assess ourselves and the process we have conducted at all times. We must identify peculiar circumstances and not only deal with them but bring them to the right forums to be dealt with.

Mediation is not  bound by procedural requirements of the law but is a consensual decision of the parties who are guided by  a neutral party(mediator) in a fair process that ensures all the party’s  interests pertinent to the matter in question have been listened to and the solution is owned by the parties.

So there is need for a mediator to desist from being totally detached, that  is not the meaning of neutral.

It therefore behoves mediators to read the case summary, to quickly appraise oneself of the nature of the dispute instead of stating:

“This is your dispute, you are in full control, I am a neutral party here, so I will leave you to it. Kindly be fair to one another observe the ground rules, no walk away as you have signed the statement of understanding, there could be penalties by the court  if you do, please talk and try to finish   in about 45 minutes, we started late, so the room might not be available to us beyond that. It belongs to the Judiciary; we mediators have no adequate space, that is one of our problems, so try to  reach a settlement, am sure it will serve you well not to have to come here again”

Unless  you do a lot of  listening to self, you will deny that anything like that can pass your confidential lips. Do not glory in the fact that the process is confidential and parties’ lips are sealed.

“Your conscience is the measure of the honesty of your selfishness. Listen to it carefully.”     ~~~Richard Bach                   

                                                       

NECESSARY FEEDBACK

I attended a mediation event organised by the taskforce on alternative dispute resolution Court Annexed Mediation in conjunction with  The International Development Law Organisation (IDLO) on 7th February 2019.

I  was struck by the relevance of the objective of the event and how it is very essential in our everyday lives. We so often take for granted the people and  organisations that support the institutions that provide a framework for our personal growth, making it possible to enable us be of service to the society thereby growing our own self worth.

We fail to give the necessary feedback.

Accredited mediators were called to a consultative meeting with Court Annexed Mediation. What I gathered was necessary feedback, feedback from both sides, the accredited mediator performance and feedback on the support they get, so feedback is a two-way  process.

The Court Annexed mediation project has been ongoing since 2016, it required not just the passion of the participants but resources, personal sacrifices and people buy in.

It is  in human nature to expect some others will be there to  provide what is needed and indeed we find them, we find driven people and institutions devoted to the success of an ideal. Without such people, it would be difficult or impossible to be in a project like mediation.

What inspired me to write this piece is the presentation by the representative from IDLO. She just posed some questions that set me wondering as I looked back on the review of progress in commercial division  so ably given by the Deputy Registrar who has spearheaded the commercial court mediation at the High Court from inception, the comments from the Mediation Accreditation Committee (MAC) registrar, from the Commercial mediators, from heads of training institutions and other stakeholders.

The questions were the kind that seek a feedback but very cleverly put to actually make me conclude that they were meant not to be just answered there and then but to go with us for pondering on where we set out to  be, how we have set about going there, whether we are okay with where we have reached and what is likely to spur us on to greater strides if we really are still focused on our intended destination.

When we talk about feedback, the idea in our minds is usually someone else who had expectations, for example, the employer to give feedback.

My take home from the event was, we have to do personal assessment. This helps to set the proper attitude of all those who have offered  themselves as mediators on the esteemed list of accredited court annexed mediators .

I looked at various definitions of feedback and picked one from snap survey which says:

“The term feedback is used to describe the helpful information or criticism about prior action or behaviour from an individual, communicated from another individual (or a group) who can use that information to adjust and improve current and future actions and behaviours.”

They had a bit more to say about the  importance of feedback.

“feedback and opportunities  to use that feedback helps to improve and enhance, whether an individual, group, business, business unit, company, organisation- and the information can be used to make better informed decisions. It also allows us to build and maintain communication with others.”

The feedback at this forum was based on honest appraisal informed by the following:

1. What is the progress from Launch of initial roll out of Accredited Mediators?
2. What are the recorded complaints from consumers?
3. What are the mediator’s concerns?.
4. What action plans are feasible?

Of course the organizers will be addressing all that, but my interest is the individual assessment in a very honest way on whether the competencies, the passion, the effort and inner vision have helped to add value, if not, what personal work can be done?

I read somewhere a phrase I liked and remember always when analysing people involved matters

“ It Takes Change To Make Change”

My  own take on mediation is that, it can only succeed if the focus is on how the mediator makes him/herself  able to connect in an unbiased way with each  one of the parties and tune them to their innate abilities to resolve their issues.

The mediator should trust self in his/her ability to guide the parties so that they adopt the right attitude towards the problem which attitude is: a spirit of recognising that respecting the other’s rights does not take away yours but is the best safeguard of your own rights. The mediator should have a grasp of the dispute without becoming part of it; all he/she should focus on is to engage the mediation skills that fit the particular problem.

The mediators should know the key ingredients to successful interaction for example. establishing trust and checking throughout the process that it is not wavering.

A mediator should detect that empathy has been established with each party as they tell their story.

The mediator should maintain an inner sensor that will signal all important reactions going on, for example, there is power imbalance(action), parties are listening to each other (reinforce), an eruption is brewing(action).

The mediator does not sit there as a noun but a verb (picked from a Ted talk). The parties are the sentence, the mediator is a verb(action) part of that sentence albeit a verb that is mostly  mental action oriented.

The environmental factors that affect the process are part of the mediator’s role, they should  be handled as preliminaries not as excuses to fail the process.

Getting a self-assessment that the above is done and done right, impacts very positively on all those who have invested in better justice for all and they will in turn after seeing real progress, invest more and better resources to give the mediators a platform for growth and personal enrichment in many ways.

From the above quotation we learn that true success will follow honest service.  And the following quote from Disney reminds us of how we grow a project to greatness:

My  feedback to the  organisers and sponsors is  thank  you very much for connecting your vision with others; you were the ‘Adverb’ in the meeting.  Keep doing what you do and a better version of the same. That I call a results oriented thank you.

 

The school fires have been reignited: Still ‘Crying In the Wilderness!’

The school fires have been reignited:  Still ‘Crying In the Wilderness!’

  From ‘the Dancingcat22’ Fame Soundtrack

My second post entitled “crying in the wilderness” was about school fires and that was in August 2016. In that blog I exhorted every so called stakeholder, parents, teachers, friends, and the rest of humanity, to help the school children regain trust in humanity. I should have specifically mentioned leaders due to the fact that school fires have continued unabated and are currently raging on and means that whatever measures were taken then were misguided, ineffective or were not taken appropriately.

As is usual in government dealings, some research was commissioned to conduct a survey on the causes of school fire and the proposals on how to deal with it. But a research full of statistics and a summary from unconcerned questionnaire responders cannot be as good as looking into the faces of these youth, feeling their pain, seeing their lostness, their yearning for acceptance, encouragement and security. This role should be played by everyone in this wide world.

The calamity of disgruntled youth is not localised to Kenya except that the “disease” manifests itself differently; it can be school shootings in the U.S.A, terrorism in the Middle East, and alarming escalation of suicide among the youth anywhere, apathy for honest work and so on. If one was to scrutinise the research results on causes, or better still the honest assessment of the various communities, there would be commonalities.

Reading reports or comments across this globalised world chaos, the followings are some notable concerns:

1. i) Mental health crisis in which the youth lead lives of overwhelming anxiety, negativity and self destructive tendencies.
2. ii) Trauma which is unknown to the parents or teachers who in cases do not even want to know. Some students have lived through very traumatic experiences whose effects are bottled up deep within their souls and yet no one cares to ask how they are coping. Examples of such trauma include the election violence, watching brutality in whatever situations and having” terrorist parents” of various categories.

iii) Exploitation of the youth to grow the drug trade. It is well known that the drug industry is run or promoted by senior members of our society.

iv ) Extreme poverty so degrading that it leaves one living in shame and apprehension of bad things .

1. v) Living in a world steered by self absorbed, obnoxious, morally deficient and incorrigible adults who have created a highly toxic environment that pushes the youth to the direction of violence.

We all are to blame; and we all individually and collectively need to do something. The issue of emotional turmoil is beyond politics. The quote below is a good guide:

From https://www.pinterest.com/

 

Headlines in all mainstream media have been screaming about the fires

  “Alarm as new wave of fires hits schools”

From The Star, July 10^th, 2018/Hilton Otyeno

 

The reaction to this might be more worrying than the wave of the fires, however there are a few encouraging things too. It is a good thing that Amina Mohammed, the incumbent Cabinet Secretary (CS) of Education, is a woman and a mother. There is no one better suited to handle this than one with the unique qualities that mothers have. Women of all generations do not listen to popular speeches about a problem; they somehow live in the problem.

The reason mothers live in the problem is that mothers see their children in the others. Mothers always have other children brought into their space by their own children, and it reaches a time when every mother knows that the child will grow and flee the coop. What is outside there, is everyone’s other children and they should better be alright as they may team up with theirs.

It is one world with no high fences or walls to keep away the others.

The” USA for Africa -We are the world” song makes me cry; we are near these children of the fires, and yet we cannot make a better day for them which in turn would make a better day for all of us.

The following are the announced official findings on the causes of fire in Kenyan Schools:

The findings so far have revealed that some students are reacting to cancellation of results, some want an assurance that cheating in exams will be facilitated and they are unhappy about the new tough rules on cheating. That there is a lot of monitoring in boarding schools and most significantly, the Directorate of Criminal Investigations is to criminalise all acts of student unrest.

However, these are our children and we seem to be refusing to see ourselves in them. When a student wants to cheat, could there be a root cause to it?

The school fires are just a tip of the iceberg, we have major societal issues which we appear to be avoiding through findings that label the students as stupid and incapable of learning or passing exams through honest means.

 

If that is the position, what about their teachers, the syllabus, and the children’s upbringing and most of all, what is it that needs to be healed to settle the problem once and for all?

If you look at cheating, what is it that has robbed these children of the confidence to face challenges such as the exams? Let us review a few examples of occurrences in the society from which the real life experience to kids emanate:

• To get into some schools right from nursery, the parents have to bribe. The more reputable the school, the higher the bribe. How may this affect the child? Parents grieve for the amount of money they have to part with as bribes and the children feel guilty of being burdens to the parents instead of the bundles of joy that they initially were meant to be.
• Most of us parents live disorderly lives and our children lead a life of stress and anxiety as a result. In many cases, the only time the child attracts the attention of the parent is when there is something wrong such as the school dorm fire. That is the time that the parent is forced to go to the school otherwise the parent is too busy to spare the time; probably “serving” the nation, or making money to ensure the physical needs of the family are met.
• The teachers whom the parents expect to stand in for them in the matters of nurturing the children are probably a bigger mess than the parents. The teachers are on the streets rioting for more pay during the most part of the school calendar.
• Teachers in most cases do not even realise the divine role they have taken up; instead of encouraging their students, they belittle them. The teachers discriminate their students on the basis of social status or ethnic group or whatever else ignites hate in students. The majority of teachers stand guilty of discrimination, favouritism, lack of passion for their work and much more. The teachers have some legitimate grievances but they do not really follow correct channels to resolve them, in many cases they create a toxic environment in the schools and in the classrooms by talking and acting negative and passing this onto the children.
• The media, both mainstream and social have very little regard to what they expose to the youth. The media expect the parents to be able to control what a child watches or tumbles on. The impact of these things is never looked into.
• The experiences children go through in what the government considers as legitimate such as evictions of families in ungodly hours contribute a lot to the mess we are now facing.
• Acting humane and preserving the dignity of the victims is very important, what we all need to give is love no matter what the situation;   dehumanising society can be done in so many ways; if a child witnesses the city county askari terrorising the mother, the insecurity that develops in the child causes such a child underlying stress which will one day burst like the Solai Dam.

Separation and divorce repercussions:

• As long as society does not really mind about the impact of divorce on children and the matter is strictly a private affair between the couple, there will be no provision for the healing of the children and repercussions may include school fires.
• Poverty turns both young and old into potential violence instigators especially when the visions of a better future are blocked out by the mismanagement of natural resources, especially the environment.
• Fake religions and behaviour of some religious leaders is a big betrayal to the youth who follow with a lot of trust.
• The high rate of unemployment for the youth who completed studies creates negative attitude towards studies, and the creativity of the youth instead of being put to positive action is turned into negative destructive energy.
• Nepotism and related vices make some feel hopeless, they have the fear that even if  they were to do well in studies, chances are they will be by-passed by “the  connected” .
• There are too many scary situations, even enjoying a cup of tea poses danger of poisoned sugar.

A bigger question is what our education focuses on and what is the methodology of imparting knowledge?

 

The other truth not addressed is that unlike adults, the youth have great empathy for each other, they take up each other’s cause so naturally and injustice against one is injustice against all. They can fight each other but they are a tribe of their own, they want to stand by each other as it used to be for societies in the primitive stages. The efforts of adults to set them apart on grounds of social status, religion or origin is an underlying cause of mental stress.

The young are drawing attention to the ills in our society at the expense of their own lives. Their topmost grievance is whether the society really accepts them the way they are.

 

We need to listen to the children and to heal ourselves and them. I would encourage those dealing with this issue to listen to Michael Jackson’s “Heal the world” and to watch the video.

Listen with love and you will get all the underlying issues as mediators are taught to do. We do not just need to get the issues but we need to re-school our society.

 

LET US TALK ABOUT PROFESSIONAL MEDIATION (Mediator Are You Uncomfortable With Your Self?)

 

We started the conversation about mediation in the first post. We have explored thought processes that are aligned to mediation in subsequent posts; I now invite you to look at mediation   from a professional angle and consider how comfortable we are as professional mediators.

Personally am still way far from being comfortable, am working and learning individually and  through shared experiences and am not ashamed to say it.

Who is a professional for this discussion?

I had to go online and choose the definition preferred by another professional which clicked with my way of thinking.

Merriam-Webster defines professionalism as     “The skill, good judgment and polite behaviour that is expected from a person who is trained to do a job well.”  In essence, it is a specific way of thinking and acting in your everyday life, especially while at work. (Kelsey Tressler).

In brief, you have to attend a credible institution and learn the skills; then work hard to gain experience; in carrying out your activities, show good judgement; and in your daily conduct, good manners. This was further amplified for me by listening to Joan Burge, she outlines the attributes of a professional very well:

• • • • Specialised knowledge,
      • Commitment to improvement
      • Competency
      • Reliability
      • Ability to manage expectations
      • Honesty & Integrity, never compromising, owning up in case one errors and able to say when you lack the capability to do something.
      • Self-regulation and respect for others is also important.
      • Have emotional intelligence and ability to listen and observe.

What I want to share is what I have observed in one aspect of our judicial transformation, where we are dealing with this novel concept of professionally resolving conflicts, called mediation.

We are told that this is a traditional way of resolving disputes which was used by our forefathers. We have adopted it as one of the preferred alternative dispute resolution options suitable for  resolving court cases.

The mediation manual for the Court Annexed Mediation Kenya defines Mediation as follows:

“A process where a neutral and impartial third person called a mediator assists disputing parties to reach a resolution of some or all of their issues in dispute.

The court annexed mediation seems to make the process even easier, it provides a statement of issues and the case summary.

The training of professional mediators requires only 40 hours, and is very interesting and full of nice Videos that show participants being very reasonable, very understanding   and full of reconciliatory gestures. In the videos, parties invariably reach a consensus, and shake hands.

The trainees are very enthusiastic; the classes include role plays and also some sharing on conflicts candidates have helped to resolve, whether in the church, family or clubs. At the end of it all, the general outlook is that mediation is no big deal.

The truth is that professional mediation is such a big deal, it does not suffer charlatans. As a mediator, one has to be on the top rank of professionalism.

For the court annexed mediation, the accrediting institution (MAC) spent a good part of its first year of existence working on Standards and a Code of Ethics. The twin sets are meant to ensure that  professionalism is guaranteed. Professionalism is never about reading and memorizing, it is about being it (professional).

A mentorship program is in the offing, through this initiative, the truly professional can leave their mark on the world by steering others, in the words of Dr.M.Scott Peck, to walk the road  less traveled.  Commitment to excellence in gaining ability to patiently listen to other people until  they shift their positions is a rare trait. Most people, not only lawyers, love the sound   of their own voices too much to let others do the talking.

Many people, are so keen on suggesting solutions to everyone else’s problem, but they are oblivious to their own. They will never adhere to the divine guidance that before minding   other people’s problems, take care of your own.

In a recent Mediation event, a seasoned mediator trainer, James Mangerere reminded us that a mediator needs to be conflict competent. He cautioned that the process’s success depends on a high level of trust and it is not easy for parties to trust a person who lacks the emotional intelligence to resolve personal issues.

There is a requirement for mediators to conduct themselves with decorum at all times, do not be caught shouting if a low tone can do just as well.

There is also need to mind  simple things like reaching the venue for mediation late, and giving a lame excuse, or, failing to read the emotions of   the parties especially the one giving the “we don’t trust you signals .”

A professional mediator has to master a multiplicity of skills some of which have been scientifically proven to positively impact human interactions.

I was reading on a science site ( https://www.telegraph.co.uk/news/science/science), and was amazed at the following statements:

“When humans look at a new face their eyes tend to wander left, falling on the right hand side of the person’s face first.

This “left gaze bias” only occurs when we encounter faces and does not apply any other time, such as when inspecting   animals or inanimate objects.  A possible reason for the tendency is that the right side of the human face is better at expressing emotional state.”

Emotions are a very significant aspect of professional mediation training as mediation is essentially a field of emotions. As a mediator, if you are not comfortable with your “left gaze bias” and your   point of attraction is the shine on the shoes or quality of the handbag, then you may be in the wrong profession. It is important to touch on some of these delicate areas, because our society has become notorious for sizing people up, to assess their shilling’s worth as a measure of the respect they merit.

More than any other profession, mediator is called upon to assert the equality of every human being, treating them with equal measure of respect, a requirement that sometimes makes us   uncomfortable; and yet as human beings, we are all called upon to assert each other’s humanity. Mediation gives a unique opportunity to do that as it is  people-centric and  each party matters.

“The law’s the law, but people are people.” M.L.Stedman quote, tags- being human.

When a mediator treats both or all parties as equal in dignity, you are beyond the level of many professionals, and at the level of the greatest   people of all time, not necessarily highly educated but extremely wise.

•  By active listening, you have the great ability of hearing the unspoken;
• By empathy, you have the singular ability to overcome self and touch the essence of another;
• By refraining from being the decision maker, you are observing the divine version of freedom;
• By re-framing the parties’ statements, it means you are an intelligent listener;
• By managing the process, you are a leader;

 In short, a mediator mines the goodness that he/she must trust resides in each human being;

 Such process is a big deal, and a worthwhile investment for anyone engaged in it.Do not be too comfortable with a 40 hours worth certificate, keep on  observing,feeling,responding  and learning.

  A hand shake is worth a billion dollars and you are in the profession where a genuine handshake is the ultimate.

 

 

 

 

WINNIE WAS A WINNER: Tribute to Winnie Mandela.

Pic Courtesy of The Daily Nation.

“The things we do outlast our mortality. The things we do are like monuments that people build to honor heroes after they’ve died. They’re like the pyramids that the Egyptians built to honor the pharaohs. Only instead of being made of stone, they’re made out of the memories people have of you.”
― R.J. Palacio, Wonder

When  you hear about the death of someone you  have never met, never talked to and never expected to meet and your  world stands still, you feel an overwhelming sense of loss ,real sadness; more profound than what you felt for death of a long lost relative there is  a wondering why? That is how I and some others felt when the death of a woman who has been terribly vilified in some circles, Winnie Madikizela Mandela  was announced on Monday. One has to wonder why the reaction and she was a stranger? Or was she?

I call that immortality and immortality is what everyone would want to have but only a few, the winners like Winnie get it.Those are the people who in leaving their lives, have espoused Ideals that try to rescue the alienated humanity ;stood for what in their heart they knew was right and never wavered. They fought a good fight and deep down at the core of our being, we are not strangers at all- that was Winnie Mandela.

And above is a quote from the husband who ignited her fight for the rights of the black South Africans which mirrors the fight for the oppressed all over the world.

What he (Nelson Mandela) probably did not acknowledge, is that his dear Winnie’s humanity was sorely challenged and only her defiance saved her sanity.

http://sok-kosovo.org

No matter what is said about her, Winnie is an example of someone who lived her life with a clearly defined purpose. For someone to live their purpose or their truth, they encounter circumstances that irresistibly lead them on a certain path.

Winnie never claimed she was good; she just had to do what a woman in her position scarred by brutality, isolation and despicable treatment of a human being, had to do.

Certain things went terribly wrong, but that is happening everywhere where those in power are advancing their causes. The youth are killed mercilessly in political struggles, in economic hardships in religious fanaticism. They are sacrificed by the so called civilised society in pursuit of interests that are absolutely selfish. Winnie admitted she was a creation of the world she lived in and that she learnt how to hate; a product of her enemy’s dehumanisation.

Pinterest

She could have had an easy life of luxury and great fame as the obliging wife of the great peace-loving icon, Nelson Mandela but she chose the difficult path with purpose.

The legacy of hatred and violence is thanks to her tormentors. Her story teaches us something, a beautiful woman with beautiful Ideals was made into a hardened, tormented and angry person. Unlike useless negative emotions in many of us, hers fueled her fight for freedom.

Winnie had exceptional courage. Only a person with deep conviction could stand up and defend her position alone. Many betrayed her and turned away from her so as not to be associated with her negative publicity. Equally many stood by her side.

In another world in different circumstances, she would have made the best follower of Jesus; fighting for Justice and the down trodden.

Without ignoring the gravity of the misdeeds committed in her name, I would caution those who vilify her that they need to

“Walk a mile in her shoes”

For women who talk about freedom and equity, Winnie’s life is a great story. You have got to sacrifice and pay the price; you have got to stand for something that means something to other people apart from yourself; and you have to crash through the egos that want to hold you in “the woman’s place”

Managing to raise a family of great daughters in the environment she lived in is a one woman wonder. Some of us cannot raise children properly with so many excuses: – we are employed, their fathers come home late, the money is not enough!

Nelson Mandela was the luckiest man to have encountered Winnie when he did and to have failed to make her into a replica of himself. Who she was is what was needed for their struggle. There are those who preach beautiful ideals, there are others who confront the desensitised side of humanity in a real battle to restore what was lost; they are two sides of the same coin.

I have read with great pleasure on NCA .com about Stompie Seipie’s mother visiting to pay her last respects . That speaks volumes about the connection Winnie had with her people, it was deep, unbreakable. One Dr. Blakley in a tribute said, and I quote:

“”Her legacy will live on, Mama cared about us 55 million displaced Africans displaced by slave trade,” said Blakley.

“She was a woman of truth whether you agreed with her or not it didn’t matter, a woman with integrity, a woman that loved and cared and if you knew Mama Winnie she would push you forward too in her leadership style.”

Someone who evokes such emotions and positive action even from the mother of a boy she is alleged to have killed is a winner.

Winnie believed in herself and in turn the people whose rights she championed believed in her.

She is one of the rare few to be praised by a woman who succeeded her in marriage. Graca  Macel gave a most loving tribute, God bless her.

If you believe in yourself and have dedication and pride – and never quit, you’ll be a winner. …https://www.brainyquote.com/topics/winner

Looking at the South Africa peace negotiations, which negatively impacted on Winnie’s relationships both personal and public, from a mediator’s perspective, this is what I have to say:

• The circumstances presented one of the most highly emotive situations that needed to be addressed. There was focus on governance and future opportunities for blacks, but it would appear from Winnie Mandela’s reaction to the eventual deal, that the deep suffering and dehumanisation of the people by the Apartheid regime, the impoverishment and its negative impact, the unfair distribution of wealth remained thorny issues.The contribution of women like herself was somehow understated.

This left many still bitter and feeling betrayed the good intentions of negotiators notwithstanding.

What Winnie advocated for is what mediators try to bring out in negotiations.

• Let there be power balance in the process.
• Let every interest be represented by a person who can articulate the issues very well and understands the particular group’s interests and has their trust.

In this case, for those who were hurting from actual physical and psychological scars, Winnie would have been the best to be there and speak for them.

Sometimes, to attain real peace there is need to detoxify the psyche.

Long Live Winnie Mandela! You fought a good fight.

 

 

 

 

 

 

TIME TO TALK ABOUT PEACE TRUTHFULLY.

 

“When we plant trees, we plant the seeds of peace and seeds of hope.”

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The world over craves for peace. Peace does not manifest itself in any society until peace for individuals is manifested in their countenances regardless of their origins, social status, gender, religious affiliation or political inclination.

Election processes have increasingly become seasons of tension especially in so called Emerging Democracies.

There should be heightened efforts for peace so as to deal with underlying issues that predispose the youth in particular to violence.

The important issue to analyse is: What is Peace?

That is why I started with the lessons from Nobel Peace award winner Professor Wangari Maathai.

There is a very good reason why Professor Wangari Maathai was chased all over the green and mercilessly clobbered as she held on to the trees she loved to save. Wangari Maathai used her extensive knowledge and inner wisdom to empower the people to recognize the real threats to humanity in general.

I was privileged to attend a few forums which she addressed, and I must say, she just left me feeling empowered, inspired and a bit introspective. Her speeches gave hope, purpose and a desire to reach out.

The great Professor inspired working together to make a difference and give people hope. I read purposeful living in her words, a call to action in her outcry and a reality check message in her exhortations.

The reality check I gleaned from her message is mainly on putting focus on things that really matter, things that endure and keeping things in the right perspective.

The things she emphasized, like environment were geared to preserving that which is essential for primary human needs without which, the society is exposed to grave insecurities leading to conflicts.

We learn a lesson from Wangari Maathai’s empowerment of the people at the grass roots especially women. She tapped into the nurturing instinct of women to promote environmental conservation, the greatest agenda for our time.

She recognized that for conservation to succeed, the economic empowerment of those who are wont to destroy nature for survival, has to be a priority. She did not give handouts, she gave impetus to use skills to earn a living. Most important, she imparted wisdom that resonated with her audience whatever class of people she spoke to. Her humility was recipe for greatness as everyone felt included in her deep concerns for survival of this beautiful world which we have desolated by greed. Her aim was to help all of us to reclaim the beauty and in so doing restore our humanity; that which makes us leave together as one family and part of the universe.

Wangari Maathai exemplified true leadership and she deserves the international acclamation. She did not hoard what she got, but used it to enrich others who in turn continue enriching her nation, the world and the human psyche.

Looking at peace from the viewpoint of the great environmentalist and others of her calibre, it is possible to envisage peace that it does not require armed policing to ensure people do not turn against each other.

Leaders need to be the kind of people who can tap into the innate desire for peace in each person. The people themselves, who form the electorate cannot be spared, their reasons for electing leaders or getting the leaders who can manage their peculiar attitudes, idiosyncrasies, hates and bitterness’s result in the kind of leaders they get.

A leader ought to know the requirements that bring out the humane in each one of us and to recognise the conditions, situations or circumstances that bring out the worst in human beings.

Leaders should be inspiring enough to induce positive peaceful thoughts in their followers.

The world over is facing serious issues relating to violence, and they are somehow connected both micro and macro levels. There is violence in families, neighborhoods, nations and beyond.

From book by Elias Omondi Opondo, “peace weavers” a Pauline publication, on page 166 looks at violence and of the three definitions given, I liked one as follows:

“Violence is that act of forgetting or ignoring who we are: brothers and sisters to one another and each one of us a child of God. It transforms a person (subject) into an object or a thing. Once we forget who we are and begin to act violently, we begin to legitimise what we do and to systematise wickedness through prejudicial laws and constitution e.g apartheid”

The other definition Elias as cited is:

“Violence is emotional, verbal or physical behaviour, which dominates, diminishes, dehumanises, or destroys ourselves and/or others.”

The social media is a very good forum for monitoring the existence or non-existence of violence.

Violence results when an individual’s natural state of harmony in body mind and soul, is affected by internal or external circumstance or both. The individual is in a state of continuous strife. Conflict competency or otherwise (having or not having skills) to handle strife both personally and through outside intervention can escalate the situation till it erupts spilling over to others near and far. Resources are used to forecast volcanic eruption or adverse weather and those warnings are acted on; but we turn a blind eye to the human propensity to erupt. Violence tends to occur as an unavoidable natural consequence of the environment and circumstances in which persons find themselves or subject themselves to.  Often it is a cry for help, a need to be understood.

A key factor in facilitating violence is fear.

“Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, and hate leads to suffering.”  –Yoda (cited by Sims Wreth)

Look around you and listen to people and their fears, wonder how the fear got hold of them and what does one need to conquer fear.

Is there fear of where the next meal is coming from?

Is there reason to fear your neighbour? Why?

Is there fear that climate change will annihilate us all? That what will happen if Hurricanes or their equivalent decide to come calling in Africa?

Is there fear of examinations? Why?

Is there fear that when you need medical attention, nurses will be on strike?

Is there fear that everything you can afford to eat or drink may cause cancer?

Is there fear that the fuel you are putting in your car maybe adulterated with paraffin or camel piss?

There are so many reasons to fear and human history is replete with concerted effort to conquer fear. Trusting one another as human beings, knowing that each person was created for a purpose and with a special gift to impart helps us support one another to face the unknown. The old are meant to mentor the young, the leaders to nurture every one’s potential by identifying needs and distributing resources accordingly.

There is need to really identify sources of discord without avoiding responsibility for where we have fallen short.

Fear in the world started with greed, When God created Adam and Eve and tried to teach restraint by forbidding the fruits of just one tree, they did not see any wisdom in that, they took advice from the snake of all things! ate the fruit and discovered fear. They had to go hiding from God; there was no Peace after that because man had to toil and act responsible to survive.

God had to see the fruits of their labour, Cain became jealous of what he perceived to be Abel’s better offering. Cain killed Abel and God came knocking to ask him, where is your brother; Cain in his arrogance, now that he had no competition answered:

“Am I my brother’s keeper?”

As long as we do not work with honesty, look out for each other and be our brother’s keeper, we will follow the voice of the snake, “to eat the fruit and be great like God.”

So before one accepts to be guided by another, it is incumbent upon the individual to ask:

Whose voice is that one listening to? Is it God who wanted human beings to manage the rest of creation as a joint team of man and woman or the voice of the snake who persuaded man that you can be as powerful as God by desecrating the earth, over exploiting the environment, cutting trees that give shelter, destroying water resources, envying each other and destabilizing the natural patterns that make us safe.