By: David Ndirangu
Worth Noting:
- Private mediation refers to mediation in a dispute that is not subject of a case pending in any court of law. However, the parties may upon reaching a negotiated settlement agreement present the same to a court of law for validation.
- An Accredited Mediator is a mediator registered with the Mediation Accreditation Committee (MAC).
- Generally all types of cases may be referred to mediation including children cases, family issues, succession, employment, labour relations, commercial, civil, environmental, land disputes, trespass and minor cases of personal fights and assault. However, cases like murder, rape, defilement, child neglect, domestic violence and other major criminal matters are not suitable for mediation.
The Kenyan Judiciary has been implementing Mediation as an Alternative Dispute Resolution (ADR) mechanism since the year 2016.
Within the ambit of ADR, the Judiciary introduced Court Annexed Mediation (CAM) in an effort to alleviate case backlog in the courts of law in line with Article 159 (2) (c) of the Kenya Constitution 2010 which mandates the Judiciary to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional methods of dispute resolution.
Mediation refers to a process where parties resolve their disputes with the assistance of a neutral, independent and impartial person called a mediator. In mediation the parties decide on how to resolve their dispute – the mediator is just a facilitator who assists the disputing parties reach a negotiated settlement.
Court Annexed Mediation (CAM) is mediation conducted with the assistance of an accredited mediator, under the supervision of the court.
A private mediation agreement may be adopted and enforced under this programme.
Private mediation refers to mediation in a dispute that is not subject of a case pending in any court of law. However, the parties may upon reaching a negotiated settlement agreement present the same to a court of law for validation.
An Accredited Mediator is a mediator registered with the Mediation Accreditation Committee (MAC).
Generally all types of cases may be referred to mediation including children cases, family issues, succession, employment, labour relations, commercial, civil, environmental, land disputes, trespass and minor cases of personal fights and assault. However, cases like murder, rape, defilement, child neglect, domestic violence and other major criminal matters are not suitable for mediation.
The courts are supposed to review the details of cases filed and determine whether they are suitable for referral to mediation. The process is referred to as screening. As a procedure it is mandatory to subject all civil action case files to screening upon implementation of Court Annexed Mediation in any particular court.
Parties or even one party to a matter in court may request for their case to be screened for referral to mediation.
When a case has been referred to mediation, it becomes mandatory for all the parties to get on with the process.
The court will appoint a mediator and notify the parties of the decision within seven days.
The appointed mediator shall in consultation with the parties, schedule dates, time and place for the mediation sessions. The parties may also by consent select a mediator from the register of accredited mediators. Mediation sessions under CAM may also be conducted virtually in accordance with the Guidelines for Virtual Mediation. The mediator may request the Judiciary for administrative assistance for virtual mediation.
In the mediation process, the role of the mediator is to; initiate communication to the parties, advocates and their representatives. Explain the rules of engagement to the parties. Facilitate resolution of the dispute.
Maintain confidentiality. Update the court on the progress in the mediation. Draft settlement agreements and file a mediation report with the court upon conclusion of the mediation process. Cases referred to mediation should be resolved within sixty (60) days. The mediation report has the same powers as a court judgement. However, it is not subject to appeal at all.
The role of the parties to the dispute in the mediation process are; to file a summary of the case in the prescribed form. To commit to observe the rules of engagement. To act in good faith. To maintain confidentiality. To attend all the mediation sessions and to sign the negotiated agreement upon settlement.
In addition to helping reduce case backlog in the courts, other benefits of Court Annexed Mediation include; mediation is faster and less costly compared to the normal court process. It focuses on interests of the disputing parties rather than their positions thus encouraging creative solutions for mutual benefit of the parties. It is flexible – allowing procedures to be modified to meet the demands of the parties. Confidentiality – all information exchanged during CAM is private and confidential and is not even admissible in a court of law. It preserves a cordial relationship between the parties. Availability of CAM is likely to reduce the level of corruption in the judiciary as it eliminates the temptation or need to offer a bribe due to the ease and openness of the process.
There are several success stories in the few years of implementation of CAM. Families have been reunited, contractual relations restored and cases that have been in court for ages settled. In addition, an amount close to KShs. 55 billion previously held up in disputes has been released back into the economy as a result of resolved matters.
David Ndirangu Bsc. International Business Administration (USIU- A) CPA (K). Business Management Consultant and Author of the book; This is DAVE. Email: ndirangudavid2023@gmail.com
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