Alternative Dispute Resolution (ADR) is the procedure or combination of procedures voluntarily used by both parties to resolve a dispute or address the issues in controversy.

Under article 159 of the Constitution of Kenya, 2010, it is provided that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall all be promoted as long as they do not contravene the Bill of Rights and are not repugnant to justice or inconsistent with the Constitution or any written law.

What is mediation?

Mediation is a form of alternative dispute resolution where an acceptable, impartial and neutral third party, who has no authoritative decision-making power, assists disputing parties in voluntarily reaching their own mutually acceptable settlement of the issues in dispute.

This means that where parties to a dispute fail to agree in their negotiations, it follows that they involve a third party to help in breaking the deadlock. It is clear that mediation flows from negotiation.

Unlike in court where procedures stem from Acts of Parliament/Rules, in mediation the parties in dispute decide on terms of the arrangement

What is Court Annexed Mediation?

CAM arises where parties in litigation engage in mediation outside the court process and then move the court to record a consent judgment

It is also defined as mediation of matters pursuant to a general court direction; It is conducted under the umbrella of the Court.

Why mediation?

As Mediator Geoffrey Njenga put it: “Most disputes are not about facts, they are about injured emotions. Mediation allows aggrieved parties to release emotions, allowing them to feel heard in the language that they understand best.”

Additionally, mediation is not bound by the rules of litigation, therefore allowing for more flexible ways of dealing.

The parties may be accompanied by an advocate or a representative.

How are matters referred to CAM?

A court before which a case is being heard may, at any stage before final judgment, refer the case to mediation. This is done on a case-by-case basis through a process called screening.

Case screening is the where a Judicial Officer analyzes a case filed and determines whether it should be referred to CAM or not; meaning if the issues form a substantive question of law that should be determined by a judge, the matter will not be referred to CAM.

The Screening criteria used by Judicial officers according to the Court Annexed Mediation Rules Accounts for:

(a) the age of the case;

(b) the value and nature of the subject matter;

(c) whether the issues for determination in the case are pure points of law;

(d) whether the case is a public interest litigation or one which raises issues of public concern; and

(e) generally, whether the case is one which would benefit the parties more if referred to mediation.

Cases involving allegations of issues such as child abuse, matters of a criminal nature and any issue generally raising a question of law will not be referred to CAM.

What happens after screening?

 Once screening has been done and a matter has been referred to Mediation, the mediator will give the parties in the matter notice of the referral within Seven (7) days.

Mediators are nominated from the Judiciary’s register of accredited Mediators and parties notified of the same. The court shall maintain an updated register of all cases referred to mediation.

If parties don’t agree with the list of appointed mediators, they are free to choose any other preferred mediator from the register of the accredited mediators. This has to be done within 7 days of receipt of the notification of nomination from the mediator.

Once parties settle on a preferred Mediator, he/she will thereafter schedule a date for the initial mediation and will notify the parties of the date, time and venue.

What happens after the conclusion of the mediation process?

Should parties reach an agreement, they will sign a mediation agreement that is to be filed with the Mediator within Ten (10) days of signing the agreement.

What are the CAM timelines?

The whole mediation process is expected to be concluded within Sixty (60) days, with a provision of a Ten (10) day extension period. The timelines are determined by a number of things: -

1.        The screening process;

2.       The time taken to appoint a Mediator;

3.       The time taken during the mediation process.

PROS OF CAM:

Mediation has the following advantages as opposed to litigation: -

·         It is faster

·         It is more cost-effective

·          It is private and confidential- all information exchanged during CAM is not admissible in court.

·         It allows for flexible resolutions and settlements of disputes.

CHALLENGES OF CAM:

·         Lack of capacity/insufficient personnel who can handle disputes using ADR mechanisms

·         Lack of Awareness of Court Annexed Mediation

·         Lack of Efficient Negotiation Skills by the Parties

·         Autonomy; it is pursuant to an order of the court where the settlement has to be returned back to court for ratification. This means that parties may lose their autonomy after all.

·          Lack of a reimbursement system for legal fees and other expenses is likely to make litigants resistant to mediation as it implies extra costs to the litigants and there is no provision of taxation of costs even where a mediated agreement is reached.

·         Power imbalances in mediation may cause one party to dominate the process with the result that the outcome largely reflects that party’s needs and interest and may also affect the legitimacy of the process itself.

Written by: Kate Odundo

kodundo@alakonyalaw.co.ke

 15^th May 2024