When you hear Alternative Dispute Resolution commonly referred to as ADR, the first thought that comes to mind is settling a dispute outside the Courtroom, which is correct. The typical ADR processes include: Arbitration, Negotiation, Mediation and Conciliation. It would be great to enlighten you on all four processes but the focus of this article will be Mediation.
What is Mediation? This is the intervention in a conflict of an acceptable third party who has limited or no authoritative decision making power but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of the issues in dispute . Simply put it is any instance where a third party helps others reach an agreement.
It would be necessary to point out that Mediation can be used in dispute resolution as well as in dispute prevention. An example of this would be in facilitating the process of contract negotiation. Mediation can be used in many areas to resolve disputes. The areas include workplace disputes, commercial disputes, family disputes, public disputes that evolve around environmental or land-use, school conflicts, violence prevention among many other areas.
At this point you are probably wondering why chose Mediation? Why not just ‘fight’ it out in Court? Here is why: (1) Mediation increases the control the parties have in the resolution. In a Court case, parties obtain a resolution but control resides with the judge. Mediation is likely to produce a result that is mutually agreeable to the parties. (2) The cost to be paid to a Mediator is comparable to that that you would pay an Advocate but the mediation process generally takes much less time than moving a case through the standard legal channels. (3) Court hearings are public, there are spectators but mediations are strictly confidential. No one but the parties and the Mediator know what has happened. (4) There is an element of mutuality. The parties to mediation are typically ready to work mutually towards a resolution. In most instances the fact that parties are willing to mediate means that they are ready to “move” their position.
We did mention the focus of the article would be Mediation and we can bet most of you reading this thought there would be no mention of the Court but this is exactly how mediation is gaining ground in Kenya, through what is termed Court Annexed Mediation.
The Constitution of Kenya, 2010 under Article 159 (2) (c) one would say a major statement was made there as it provides ‘In exercising judicial authority , the Courts and Tribunals shall be guided by the following principles…alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted…’ The application of this Article would now stand to counter the traditional perceptions of the only way one would resolve conflict would be to rush to Court and adopt the adversarial dispute resolution methods.
Court Annexed Mediation is generally defined as where the Registrar or other officer of the Court is the Mediator. The Registrars or Officers who conduct mediations are qualified as Mediators. In Kenya, this is mediation that is conducted under the umbrella of the Court. The pilot project was rolled out on 4th April 2016 and commenced in the High Court Family Division and at the High Court Commercial & Tax Division, Milimani Law Courts.
Cases filed after 4th April 2016 at the High Court Family Division and at the High Court Commercial & Tax Division, Milimani Law Courts were subjected to screening. The screening moving forward is carried out by a trained Court officer who reviews the details of each case filed in the said divisions and identifies whether or not the case should be referred to mediation.
The Courts have appointed Mediation Deputy Registrars who inform the parties in a dispute that the matter has been referred to mediation. Three mediators are then nominated from the list of accredited Mediators. The parties then chose their preferred Mediator. The Mediator will then set a date for initial mediation and notify the parties of the date and time.
The mediation proceedings ought to be concluded within sixty (60) days from the date of referral to mediation. This is however dependant on the parties’ commitment to conclude the mediation. Once the mediation is concluded the parties sign a Mediation Agreement which is then filed with the Mediation Deputy Registrar.
The mediation form of ADR is not without its challenges. An example would be the possible difficulty in enforcement of any decision arrived at by the Mediator since just as the definition of the term mediation suggests the mediator has no authoritative decision-making power. However, a mediation agreement, once signed by the parties and adopted by the Court, becomes enforceable by the Court as an Order/Judgment of the Court.
In a nutshell, particular break-through has been made in Kenya with the Court Annexed Mediation project and even though mediation is not the only form of ADR, its use within the Court system is definitely a step in the right direction.
Article written by Jomo Nyaribo, Partner and Edel Ouma, Associate, MMAN Advocates.
Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Nothing on this article is intended to guaranty, warranty, or predict the outcome of a particular case and should not be construed as such a guaranty, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.
