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COURT ANNEXED MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE RESOLUTION.

Updated: Aug 27, 2020

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

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