By Thiong’o Ngwiri (August 2020)
Imagine having a dispute with your friend or business partner that has gone so far
that both of your judgements may be clouded by your inclinations or your interests?
What is the next course of action?
Under normal circumstances, in matters of grave concern, people result to seeking
redress in the court system for a just remedy and persevere the shortcomings of the
justice system that include high legal expenses and long trial periods which are often
a waste of time.
When it comes to solving trivial matters, the parties are still entitled to a just remedy
even though the entire court process is considered as not the best use of resources
even though whatever remedy that ought to be agreed on should be just.
Court Annexed Mediation seeks to bridge that gap when attempting to solve trivial
matters by eliminating the shortcomings of the court system but ensuring that the
parties are exposed to a just remedy by availing a channel of transparency and
accountability.
Introduction
Mediation is an alternative dispute resolution (ADR) process in which negotiation
takes place with the assistance of a third party. The mediator’s role in such a
process is to assist the parties in the negotiations and they cannot dictate the
outcomes of the negotiation. Mediation is characterized by voluntariness,
confidentiality, informality, flexibility, speed, cost-effectiveness, efficiency, autonomy
and fostering of relationships. The Constitution of Kenya,2010 through article 159 (2)
(c) recognises mediation as a form of dispute resolution to be applied in courts.
Court Annexed Mediation on the other hand is a mediation process conducted under
the umbrella of the court. Mediation under the umbrella of the court can either be
voluntary where parties in litigation can engage in mediation outside the court
process and then move to the court to record a consent judgment or where after
parties have lodged a dispute in court, the court encourages them to have their
dispute mediated after which the outcome of that mediation is tabled in court for
ratification.
Process of Court Annexed Mediation
The process of court annexed mediation depends on whether the decision for
mediation was voluntary or a directive by the court.
Where the decision to engage in mediation is voluntary, the civil procedure act
instructs that:
1. The parties request the court to resolve their dispute through mediation.
2. The parties select a mediator for their desired purpose from the mediation
register maintained by the Mediation Accreditation Committee.
3. The mediation be conducted according to the outstanding mediation rules.
4. The agreement between the parties to a dispute as a result of a process of
mediation be recorded in writing and registered with the Court.
Where the decision to engage in mediation is a court directive, the process of court
annexed mediation differs and is as follows:
1. The court refers a case for mediation where it is screened by the Mediation
Deputy Registrar (MDR) to assess whether or not it is suitable for mediation.
2. After and if the MDR makes a decision for a case to be referred to mediation,
the MDR will notify the parties of this decision within seven days.
3. The MDR will then nominate three mediators from the mediation register
maintained by the Mediation Accreditation Committee.
4. Within seven days of being notified, the parties have to state their preferred
mediator from the three names in the order of priority, and inform the MDR of
their preference in writing after which the MDR will appoint a mediator to
handle their case.
5. The parties are free to choose any other mediator from the mediation register
so long as it is within seven days of being notified by the MDR of the names of
the three nominated mediators.
6. The appointed mediator will schedule a date for initial mediation and notify the
parties of the date, time and place.
7. The mediation be conducted according to the outstanding mediation rules.
8. The agreement between the parties to a dispute as a result of a process of
mediation be recorded in writing and registered with the Court.
Advantages of Court Annexed Mediation
1. Mediation is cost-efficient as the parties are not exposed to high costs of court
processes which may include high court fees and high legal fees.
2. Mediation is time efficient as mediation proceedings are concluded within sixty
days from the date it is referred for mediation which may be extended for a
further ten days as opposed to court proceedings which are known to take
years.
3. The parties that opt to solve their disputes through mediation decide what the
solution is and customise that solution to their needs.
4. The mediation outcome is enforceable since the mediation agreement is filed
with the MDR and is adopted and enforced as a judgement or order of the
court.
5. All information and communication exchanged or made during mediation is
confidential and is not admissible as evidence in any current or future cases in
any court.
6. The parties can still be represented during mediation proceedings by a lawyer
or a representative of one’s choice if they wish to.
7. An ADR judge can offer interim remedial measures during the mediation
proceedings.
8. Mediation processes are known to be harmonious, hence, the parties in
dispute that use mediation processes are able to maintain their relationship
after the dispute is gone.
9. Orders and judgements as a result of mediation processes cannot be
appealed hence prevents a situation of a person going back against their
words later.
10. Where mediation is voluntary, the voluntary submission to mediation impacts
on the success of mediation as they are, in such a case, willing to find a win-
win solution for all of them.
11. In cases where no agreement is reached, the mediator can notify the MDR
after which the case will be processed by the court in the usual manner.
Disadvantages of Court Annexed Mediation
1. Mediation may advocate for the parties to reach a compromise which may not
always be just
2. Where mediation is voluntary, either party can withdraw from the proceedings
at any time hence may hinder justice from being served.
3. Where mediation is as a result of a court directive, the mediator may find it
hard to get the parties to contribute to the resolution process and the result
may not be a solution generated by the parties themselves.
Court Annexed Mediation in Kenya
The Court Annexed Mediation was first implemented in Kenya in April 2016 at the
Commercial and Family Divisions of the Court. Since the beginning of the Court
Annexed Mediation, critical advancement has been made. By July 2017, Court
Annexed Mediation was accounted for to have opened more than 1.4 billion Kenya
shillings which was held up in disputes. That spoke to a settlement pace of 53.8
percent in the Commercial and 55.7% in the Family Divisions. By July 2018, 2.4
billion Kenya shillings was accounted for to have been opened ascending to 4 billion
Kenya shillings by February 2019. The quantity of Judiciary Accredited Mediators
had additionally ascended to 499 as at March 2019 in contrast with short of what one
hundred accredited mediators in July 2017.
By 2018, the use of mediation had stretched out to the Milimani Children's Court, the
Milimani Chief Magistrate's Commercial Court, the Environment and Land Court, the
Employment and Labour Relations Court, and the Civil Division of the High Court.
Moreover, the Court Annexed Mediation has likewise been launched in court stations
away from Nairobi, the capital city. These incorporate court stations in Eldoret,
Garissa, Kakamega, Kisii, Kisumu, Machakos, Mombasa, Nakuru and Nyeri.
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Name: Thiong’o Ngwiri.
Division: Criminal Justice.
Strathmore Law Clinic