Thursday 29 May 2008

Proposed Amendments to introduce mediation in Kenya

The proposed amendments affect the Civil Procedure Act, introduce a new Order XLV B and create new forms. The amendments were presented to the Rules Committee for consideration. 

The rules are a blend of the Ontario Rules spiced with the Zambian Rules. These were considered to be the most apt for our jurisdiction.    The final draft was then presented to the Rules Committee on 30th November 2004.

AMENDMENTS TO THE CIVIL PROCEDURE ACT

Mediation" means an informal and non-adversarial process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties with the aim of helping the disputing parties reach a mutually acceptable and voluntary agreement.

 

"Mediator" means an impartial person whose role in mediation is to assist an encourage parties to a dispute:

·        To communicate and negotiate in good faith with each other;

·        To identify and convey their interests to one another;

·        To assess risks;

·        To consider possible settlement options;

·        To resolve voluntarily their dispute.

 

"Impartial" means being and being seen as unbiased towards to a dispute, toward their interests and toward the options they present for settlement.

 

"Mediation Coordinator" is a person to be designated by the Chief Justice to be responsible for the administration of mediation under this Act.

 

Part IV – Special Proceedings

 

Mediation

 

S. 59 A (1)      Every suit may be referred to mediation unless otherwise excepted by statute, rule or court order or the suit involves constitutional issues, matters of public policy or has pending applications that seek to dispose the suit in a summary manner or where the trial court considers the case to be unsuitable for referral to mediation.

 

            (2)        A court ordered mediation shall be conducted according to the Rules.

 

 PROPOSED AMENDMENTS TO THE CIVIL PROCEDURE RULES

 

ORDER XLV B

 

MEDIATION UNDER ORDER OF A COURT

 

Referral to mediation

1.   (1) In every suit instituted in court, a first scheduling and settlement conference shall within thirty days after close of pleadings for the purpose of referring the case to mediation be held and presided over by the mediation coordinator.

 

(2) A mediation under sub rule (1) shall be conducted by a person:

(a)   Chosen by the agreement of the parties from the list of approved mediators.

(b)   Assigned by the Mediation Coordinator from the list of mediators.

(c) Who is not named on the list if the parties consent.

 

List of mediators

2.   The court shall maintain a panel of approved mediators that meet specific qualifications and who adhere to court approved mediator ethics. The mediator shall be of not less than seven years in their respective fields.

 

 Mediators Fees

3.      (1) The mediators fees for the mandatory mediation session shall not exceed the amount shown in the following Table:

 

TABLE

 

Number of Parties
Maximum Fees (excluding taxes and expenses).

2

Kshs. 15,000.00

3

Kshs. 20,000.00

4

Kshs. 25,000.00

5 or more

Kshs. 30,000.00

 

(2) Each party is required to pay an equal share of the mediator's fees for the mandatory session at least seven days before the first mediation session.

(3) The mediator's fees for the mandatory mediation session cover up to three hours of actual mediation.

 

(4) After the first three hours of actual mediation, the mediation may be continued if the parties and the mediator agree to do so and agree on the mediator's fees or hourly rate for the additional time.

 

(5) If the mediator cancels a session under Rule 6 (2) of this Order because a party fails to comply with Rule 6 (1) that party shall pay any cancellation fees.

 

(6) If the mediator cancels a session under Rule 7 (2) of this Order because a party fails to attend within the first thirty minutes of the session, the party who fails to attend shall pay any cancellation fees.

 

(7) Two or more parties who fail to comply or attend, as the case may be shall pay the cancellation fees in equal shares.

 

(8). A party's failure to pay a share referred to in Rule 3 (2) or 3 (7) does not increase the share or shares of the other party or parties.

 

(9) A party who has instituted a suit in forma pauperis with respect to the proceeding is not required to pay fees under this Order.

 

Time limit

4.      A mediation settlement shall take place within three (3) months after being referred to mediation provided that time may be extended for a further sixty days by the mediation coordinator having regard to the number of parties or complexity of issues or with the consent of the parties which consent shall be duly filed in court.

 

Mediation hearing

5.      (1) The assigned mediator shall immediately fix a date for the mediation settlement and shall at least twenty days before that date, serve on every party a notice stating the place, time and date of the mediation of the settlement conference and advising parties that the settlement conference is mandatory.

 

(2) The assigned mediator shall file a copy of the notice in court.

 

Procedure before mediation

6.      (1) Every party shall at least seven days before the settlement conference comply with the following conditions:

(a). Prepare a statement in the prescribed form and provide a copy to every other party and to the mediator.

(b). The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement.

(c) The party making the statement shall attach to it documents that the party considers of central importance to the action.

 

(2) If it is not practical to conduct a mediation session because a party fails to comply with sub-rule one, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Attendance at Mediation Session


7.     
(1) The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise. If the party is a corporation, partnership, government agency or entity other than an individual, an officer or director of sufficient rank to settle the matter shall attend.

(2). If it is not practical to conduct a scheduled mediation session because a party fails to attend within the first thirty minutes of the time appointed for commencement of the session, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Statement of Understanding on Role of Mediator

8.      At the commencement of the mediation, the mediator shall read and explain to the parties the statement of understanding on the role of the mediator in the prescribed form and shall require the parties to the sign the form.

 
 

Non-compliance

9.      (1) When a certificate of non-compliance is filed, the mediator shall refer the matter to the court.

(2) The court may make any of the following orders;

(a)   an order that further mediation shall occur on any terms that the court considers appropriate.

(b)   an order that the pleadings of the non-complying party be struck out, unless the party satisfies the court that there was reasonable excuse for the non-attendance and that striking out the party's pleadings will be inequitable.

(c)    an order that the defaulting party pays costs.

 

 

Confidentiality

10.  All communication at a settlement conference and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

 

Mediator's Report

11.  Within ten days after the mediation is concluded, the mediator shall give the mediation coordinator and the parties a report on the mediation in the prescribed form.

 

Agreement 

   

12.  (1) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties and filed in court within ten days after the mediation is concluded.

(2) If the agreement settles the action, the mediator shall file in court a notice to that effect and the court shall enter judgment.

(3) If no agreement is reached the parties shall set the suit down for hearing.

 

Consent Order for Additional Mediation

13.  At any stage in the proceedings, the mediation coordinator may with the consent of the parties make an order requiring the parties to participate in an additional settlement conference for purposes of dealing with all matters required to be dealt with in any case at such a settlement conference.

 

No appeals against settlement

 

14.  No appeal shall lie against a registered mediated settlement.

 

Inadmissibility in Other Court Proceedings

 

15  (1) Anything said at a mediation session shall be inadmissible in any proceedings before any court of law.

      (2) Neither the mediator nor any person present at the mediation session may be summoned, compelled or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law.

      (3) A mediation session shall not be taped nor any transcript of it kept.

      (4) Any record of what took place at a mediation session shall not be admissible before any court of law, unless the parties agree in writing.

      (5) The provisions of this rule do not:

(a)   apply to a mediated agreement, or;

(b)   prevent the admission of factual evidence relating to the cause of action that would be admissible apart from sub rule (1) and/or (2) above.

 

 Immunity

 

16. A mediator shall have the protection and immunity in the same manner and to the same extent as granted judicial officers and judges under Section 6 of the Judicature Act (Chapter 8 of the Laws of Kenya).

_______________________________________

These are the proposed court-mandated mediation rules. But the amendments seems to have stalled mid-way. What is your take on them?

This extract was an annex to a paper by Allan Gachuhi: Court Mandated Mediation- the Final Solution to Expeditious Disposal of Cases (2006)


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