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Court-annexed mediation new justice frontier.

The conventional way of resolving disputes through court called litigation has arguably faced challenges in the recent past. Shortage of judicial officers, general delay in case determinations and increased case backlog are some of these challenges.

Indeed, even in some cases that have been completed, litigants have been left dissatisfied with the determinations after long and tortuous court processes. It is perhaps because of these challenges that Article 159 ( 2 ) (c) of our Constitution mandates courts to embrace alternative dispute resolution mechanisms such as reconciliation, mediation and arbitration.

The Judiciary has made strides in institutionalising mediation as a way of quickening the resolution of civil cases filed in court. Court-annexed mediation, as it is called, is mediation under the umbrella of courts.

Once cases are filed in court, they are screened by deputy registrars and, if appropriate, referred to mediators accredited by the Judiciary. Some of the mediators are lawyers, other professionals and clerics who have received formal training and certification.

After screening, litigants are notified to appear before a mediator whose costs are borne by the Judiciary. Unlike judges, mediators do not decide the cases but play the role of facilitating disputants to try and arrive at their own solutions. On the understanding that mediation is a confidential process, a mediator encourages parties to agree on a solution.

Where parties agree, the mediator reduces the agreement into a written settlement agreement. The agreement is forwarded to the court for adoption as a court order and that brings the court case to closure. Where parties fail to agree, the mediator files a report with the court to that effect and the case resumes hearing through the normal court processes.

Court-annexed mediation was first piloted by the Judiciary in the Mililani commercial and family divisions of the High Court from April 2016 to May 2017. Commercial division because it handles business-related disputes such as those between banks and loan defaulters, breaches of commercial contracts, tax disputes, among many others.

Although these may sound like ordinary cases, large sums of money are involved and often tied up by court orders. Delay in resolving those cases hurts economic growth.

Family division, on the other hand, deals with disputes involving family members fighting over property, children, and disagreeing spouses. The need to preserve relationships even as those disputes are resolved therefore cannot be overemphasised.

An evaluation of the pilot project showed that in the two divisions, the settlement rates was 55.7 per cent and 53 per cent. Approximately Sh1.4 billion was released back to the economy. Consequently, the World Bank report on Ease of Business Index 2017 ranked Kenya at position three in sub-Saharan Africa. Globally, Kenya improved from position 92 in 2016 to 80.

To maximise the potential gains in court-annexed mediation, Chief Justice David Maraga established a task force that was gazetted in July 2017, chaired by High Court judge Fred Ochieng'. Part of its mandate is to oversee a national roll-out of court-annexed mediation.

The roll-out to other courts has been enabled by the publication of Practice Directions on Mediation 2018. The practice directions mandate the Judiciary to invoke court-annexed mediation to all civil actions filed in the High Court, the Environment and Land Court, Employment and Labour Relations Court, Magistrates Courts in Nairobi and other court stations designated by the CJ.

The task force is currently overseeing the roll-out of court-annexed-mediation to court stations in 10 counties: Mombasa, Eldoret, Kisumu, Nakuru, Nyeri, Machakos, Garissa, Embu, Kakamega and Kisii.

From the engagements during the roll-out sessions, it comes out that a number of lawyers are now taking up training as mediators. Members of the public are also eager to understand and embrace the process. Leadership in the counties where the roll-out has been effected are willing to partner with the Judiciary to achieve the potential gains of court-annexed mediation.

Even as we wait to see more, it would appear that court-annexed mediation is the new frontier in dispute resolution and reducing case backlog in the courts.
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Publication:The Star (Nairobi, Kenya)
Date:Mar 11, 2019
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