Impact of cultural diversity on the practice of dispute resolution and mediation in the Kenyan legal sector and a quest for professional and ethical stability

Abstract

In general terms, it may be said that dispute resolution among legal practitioners in Kenya relies heavily on cross cultural communication and negotiation practices and techniques. This cultural diversity poses unique challenges that may affect dispute resolution as well as jeopardise the attainment of justice. It seems essential to grasp a deeper understanding of the impact of this cultural diversity between African and European cultures commonly referred to as African and Western cultures of both genders in the daily practice of law whether within litigious or acrimonious disputes as well as in the alternative dispute resolution mechanism of mediation. Misunderstandings whether deliberate or by virtue of vocal or expressive communication or whether by tone of facial manifestation, occur as a result of a subjective perception by individuals of one culture of what is the truth and therefore the reality of any given circumstance, which often is not shared by a practitioner from another culture. Such subjectivism appears to be a by-product of the English legal system which propounds an adversarial system of legal practice aiming at a win-lose paradigm, and whose priority would seem to be win at all costs. However, it seems of paramount importance to understand and accept other people’s pints of view in the interest of peace and so as to avoid conflict. This approach may appear to be more acceptable inter-cultural way of behaving, practicing law and resolving disputes. It is in the pursuit of this objective that this study has analysed, differentiated and compared cross cultural trends and tested the perception of legal scholars on the premise that the cultural diversity impacts on the dispute resolution practice. The study arrives at the conclusion that it seems logical and acceptable to search for and espouse a tested moral standpoint of virtue ethics which is of universal acceptance and has cross cultural application and thus contribute to the search for justice in our society.