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Judiciary in bold move to entrench mediation as a means of dispute resolution.

Access to justice is a basic human right guaranteed by the 2010 Constitution, which compels the state to ensure that justice is available to all persons without discrimination. To this end, the Judiciary has come out to champion the promotion of alternative forms of dispute resolution mechanisms as guided in Article 159.

Since Independence, the Judiciary operated an adversarial justice system where parties resolve disputes in courtrooms, with a judge acting as an umpire. This over-reliance on litigation as a means of conflict resolution has over time led to a serious backlog of cases, limiting the effective fulfillment of the Judiciary's mandate, not to mention the issue of leaving the losing litigants with a bitter taste in their mouths.

In a marked departure from litigation, the Judiciary has since May 2016 operated a court-annexed mediation programme in the Commercial and Family Divisions of the High Court at Milimani. The programme is set to be rolled out countrywide soon.

So far, over 600 cases with an approximate value of Sh20.5 billion have been referred to mediation with a good number of them now resolved.

The court-sanctioned mediation programme provides Kenyans with low-cost and less acrimonious environment for resolving their disputes. It also serves as a means of clearing case backlog, which has been a major impediment to the dispensation of justice.

Mediation is defined as a process in which a neutral third-party assists disputing parties to understand their underlying concerns and negotiate a possible settlement. The third-party listens to the parties, helps the litigants to understand each other's viewpoint regarding the controversy, and then facilitates the negotiation of an amicable resolution.

Unlike in courts where the system is adversarial, parties resolving their dispute through mediation often remain friends after the case is resolved because mediators seek to create 'win-win' situations.

With court-annexed mediation being a relatively new phenomenon in our judicial system, there is a scarcity of certified and experienced mediators. To fill this critical gap the Mediation Accreditation Committee, which certifies court-mandated mediators, advertised for qualified and interested members of the public to apply for accreditation as mediators.

So far, about 140 applicants have been accredited. The process of accreditation is continuous as the committee works on building a comprehensive database of mediators with diverse experience across the country.

The committee requires that for one to be accredited as a mediator, he or she must undergo a 40-hour mediation course and also be a member of a professional body, among other requirements.

Members of the committee are drawn from various institutions such as the Law Society of Kenya, Attorney General's office, Chartered Institute of Arbitrators, Kenya Private Sector Alliance, Institute of Public Accountants, Certified Public Secretaries, Kenya Bankers, Federation of Kenya Employers, the Central Organisation of Trade Unions.

Under Section 59/A ( 2 ) of Civil Procedure Act, the MAC is mandated to enforce a code of ethics for the mediators to ensure that mediators conduct themselves in a manner that engenders public trust.

It is hoped therefore that mediation will in the fullness of time form an integral part of a modern Kenyan judicial system.

The move by the Judiciary to have mediation as one of the means available to litigants is laudable, with Kenyans hoping it will replace the 'see you in court' culture with 'let us resolve this matter through mediation' ethos.

Presiding judge, Commercial and Tax Division of the High Court and chairs the Judiciary's Alternative Dispute Resolution Task force
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Publication:The Star (Nairobi, Kenya)
Date:Apr 13, 2018
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