Why should we have church-based mediation training

This mediation training is formulated to respond to two important concerns:

1. Executing the will of God as expressed in the scriptures and especially in 1st Corinthians 6:1-8
2. To respond to the changes in our law that are in the process of being put into effect requiring that all civil and family disputes be subjected to ADR mechanisms (which includes Mediation) before being subjected to litigation and the requirement in Section 64 of the Marriage Act 2012 which stipulates that, ‘parties to a Christian Marriage may seek the services of any reconciliation bodies established for that purpose that may exist in the public place of worship where the marriage was celebrated.

1. The Scripture

It is our view that the clear directive of the scriptures (1 Corinthians 6: 1-8) is that Christians should not subject disputes amongst them for determination by the courts manned by non-believers. It is clear, per adventure that it is the will of God that disputes arising amongst the believers be resolved by and amongst themselves.
Accordingly, it is an obligation upon the church to provide a mechanism by which its members (believers) may be enabled to resolve disputes between them without having to subject them to court for determination.

1. Changes in the Law

The Constitution of Kenya 2010 provides in Article 159(2)(c) that Alternative forms of Dispute Resolution, including Mediation, Arbitration and Traditional Dispute Resolution mechanisms shall be promoted.
In furtherance of this objective of the Constitution, the Civil Procedure Act has been amended to provide in Section 59 that all Civil disputes which include family disputes i.e. Disputes between and amongst members of a family be they matrimonial or succession and all civil disputes between parties shall first be subjected to a process of resolution by Mediation.

The court has mandated compulsory Mediation of all civil and matrimonial disputes and is requiring that disputes be mediated instead of being heard in court. Mediators have been or are being accredited for this purpose.
What this means is that cases filed in the Civil and Family divisions in the High Court and in the courts subordinate to the High Court will be required to file with the plaint a certificate that the case has been subjected to mediation and where the mediation has not succeeded the reasons for the failure.

In order to sustain this project the Judiciary requires to have at its disposal a number of trained mediators to create a resource to whom disputes can go for Mediation.
That is where our church comes in. Other churches and Muslims are in the process of training their people in the skills of Mediation so that when the Judiciary calls for Mediators to go into the Mediation Roster, they will be well represented so that their followers will have people of their faith amongst the Mediators and do not have to send their disputes to resolution by people of other faiths and denominations.

The Marriage Act 2012 also requires that matrimonial disputes arising between those married in Church should be reconciled in the Churches where they were celebrated. Section 64 thereof provides as follows:- “The parties to a marriage celebrated under Part III (Christian Marriages) may seek the services of any reconciliation bodies established for that purpose that may exist in the public place of worship where the marriage was celebrated.”
This is a further reason for embracing mediation as a mechanism to help our Pastors in reconciling the disputes arising in marriages that have been celebrated in their churches.

The above provides a full justification for institutionalizing Mediation as the preferred mechanism for resolving disputes arising among the congregants.
Apart from the above legal and scriptural justification, we consider that disputes amongst family members, wife vs. husband, father vs. son or daughter, brother vs sister and all succession disputes are best resolved through mediation. Such disputes when submitted to the courts for resolution often result to the destruction of the family bonds. The paternal or filial relationship is destroyed and family unity is lost whatever the outcome. The stability of the family is therefore lost or severely injured.
It is therefore far more preferable that those kinds of disputes be resolved otherwise than through the courts. Mediation is therefore a much more preferable mechanism for resolving those disputes because it relies on the parties to find out a resolution of the dispute which they can live with. It is cheaper and quicker than litigation or arbitration and now that it can result in a legally enforceable outcome it is preferred to the court system (litigation).

What can the church do?
In our view, the church can do a number of things:-
Firstly, the Church should start by championing the course i.e. By advocating the use of mediation or other ADR mechanisms instead of the Law Courts in resolving disputes amongst its members.
Secondly, the church should undertake the process of providing an alternative mechanism for resolving these disputes.
This will call for the church institutionalizing a mediation mechanism, by training or assisting in the training of Mediators from amongst the congregants in the various Presbyteries of the church to be enrolled in a Roll of persons willing to serve as mediators to help disputants to resolve any disputes that may arise amongst them.

Who will provide the service?
Dispute & Conflict Resolution International (DCRI) is an organization that exists with the express purpose of creating a harmonious society through mediation of existing disputes, increasing conflict competence among people to minimize conflicts and raising mediators in society by training people who can intervene and support others in conflict so that they can find their own solutions to their disputes.