Scaling down of judicial functions in various jurisdictions across the world has been reported in a bid to tame the spread of the highly contagious coronavirus disease (COVID-19). As social distancing is encouraged to flatten the curve and slow down the rate of infection, courts have had to review their activities by suspending in-person proceedings, postponing trials, using teleconferencing facilities or ceasing operations. Italian and Irish courts have shut down completely as well as various federal courts across the United States of America. In India court functions have reduced significantly with similar decline in activities in Tunisian and Ugandan courts.
Close home, three days after the first positive COVID-19 case was identified, the Chief Justice announced the reduction of court activity in an unprecedented move in post-independence Kenya. The guidelines include not presenting prisoners and remandees in court; suspending appeals, hearings and mentions in criminal and civil cases; and putting on hold open courts and Court Annexed Mediation (CAM). Those measures form part of the wider government action to mitigate the pandemic that has also necessitated the closure of learning institutions, guidelines concerning public transport operations and promotion of the use of mobile money in place of cash.
The current situation presents a scenario where a disease has made it necessary to limit mediation to manage the likely physical health impact on both the conflicting parties and mediators. This had me thinking about other instances when it would be necessary to step back from mediation for the benefit of those involved.
1. When parties are physically tired
Mediation sessions should be scheduled when the parties are not physically tired. This is because fatigue affects concentration, reduces both patience and tolerance, and can cause temper flares leading to unintended outcomes. Examples include when parties meet immediately after traveling long distances or after working hours.
2. When parties have unresolved emotional or psychological issues
In some instances, the parties may have suffered some form of abuse or deep pain such as a loss of a loved one or a job. Thus, they would not be in a suitable emotional state to go through the mediation process and may need counselling or other forms of psychological support before meeting. The mediator can recommend to the parties to seek support before resuming the mediation process.
3. When mental health is questionable
Parties who are mentally ill or unstable such as those who could be suffering from depression or different disorders that are not actively managed could have their judgments impaired. This may make it difficult for them to productively participate in the mediation process. While it may be difficult to draw the line or determine the mental health of a party, it is something to be consciously aware of.
Although this article has focused on the state of parties and how their well-being may affect the mediation process, the same applies to mediators with equal rigor. Apart from regularly seeking to improve our knowledge and mediation skills, we must continue to actively reflect on our physical, emotional and mental well-being. We must also be willing to seek help and step away from mediating until recovery. Only then would we be able to serve our clients effectively and help promote the use of mediation in conflict resolution. Meanwhile, play your role in social distancing as we fight the COVID-19 together.
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