Thursday, 15 May 2008

Time Mediation In Kenya was regulated!

There is no denying that mediation is the ideal mode of resolving all disputes. But equally, it is beyond argument that of the ADR methods it stands out as the most engaging yet informal mode of dispute resolution. In fact, it is the meddle ground between the often informal negotiation and the highly legalistic arbitration.

Mediation, after the success of Annan's mediation effort in solving the post-election strive in Kenya, is perceived in awe even by lawyers who hitherto overlooked it. More people are turning to mediation to sort their disputes. Hence, the need to study mediation as a method of disputes resolution closely.

This article makes a brief comparison between the legal framework on mediation in Kenya or lack of it and that in Uganda and USA. Mediation in the international law regime is also briefly considered. The aim is to justify the proposal that Kenya adopts court-backed mediation as a matter of urgency.

What is mediation?

Mediation is a voluntary, non-binding dispute resolution process by involving a third party neutral. The neutral party helps the parties to the dispute in reaching a negotiated settlement. The settlement is then reduced in writing and when signed by all the parties becomes binding just like a normal agreement.

In essence, the mediator assists the two or more parties in negotiating a settlement agreement, with concrete effects, on a matter of common interest. The purpose of mediation is not so much as to settle the matter in favour of one party. Rather, mediation creates a situation where all the parties feel that they have won.

Mediation is applied in solving disputes in practically all human concerns. However, its main fields of application are business/commerce, politics, diplomatic disputes, environmental disputes, family disputes and minor forms found in other fields.

What is the role of a mediator?

When faced with a matter, a mediator is identifies what is commonly called the BATNA of the same, that is, the Best Alternative to a Negotiated settlement (commonly referred to as BATNA). S/he also identifies the Worst Alternative to a Negotiated Settlement (WATNA). The mediator engages the parties to get to the bottom of the issues between.

The question to be asked is, "What is the bottom line?" Parties are encouraged to look at the issues from different standpoints. The mediator may then hold caucus meetings with the parties. However, it is the parties themselves who come up with the settlement. However, the mediator is to ascertain that the settlement is comprehensive, clear and workable.

Why Mediation?

Mediation, not only effectively resolve current disputes, it helps prevent future ones. As a mode of dispute resolution, mediation has raft of advantages over other methods. For instance, in mediation unlike litigation, there are no adversaries, just parties. Mediation also provides speedy resolution and often at low cost while preserving the relationships between parties.

In mediation parties are merely empowered to solve their bone of contention. Mediation gets the disputants to share the responsibility for for resolving the dispute. Therefore, it develops in them the ability to make an independent contribution to a dispute's solution.

In addition, Mediation can:

·         Open dialogue between parties

·         Identify alternative solutions towards a win for all parties

·         Prevent or reduce court and legal fees

·         Improve the business reputation of the parties as being amicable

·         Improve the business relationship between parties.

·         Prevent disputes from affecting normal business of the parties.

Not only does the use of mediation bring benefits to the parties involved and their businesses, but it also has the following advantages over court proceedings:

·         Mediation is usually faster

·         Mediation is more cost-effective

·         Mediation is more private and confidential

·         Mediation creates the appropriate environment to address the conflict

·         May result in an understanding on how deal with future issues

·         Mediation is appealing when disputes are international in nature

That is not to say mediation is without demerits. The success of mediation lies on the willingness of the parties to make the necessary concessions. Mediation can only be as effective as the parties wish it to be and this is governed by their immediate situation. Mediation is also not binding and parties have sometimes used it merely to delay the negotiation process or to obtain more information about the other party's case.

What is the law on mediation?

Law and mediation are inseparable in that most commercial disputes referred to mediation are legal in nature. Besides, parties usually resort to mediation after first engaging the legal remedies available. In addition, due to non-binding nature of mediation, parties appeal to legal avenues after settlement to render the decisions thereof binding and enforceable. In the recent times, the trend towards having mediation provided for by law has also emerged.

Mediation and law in Kenya

Kenya does not yet have a comprehensive and integrated legal framework to govern the application of mediation in the resolution of disputes. The framework in place has largely been derived from international law and practice which have been reduced into guidelines by institutions that (by themselves or their members) offer mediation services.

In any event, the constitution of Kenya actually promotes litigation at the expense of non-litigious dispute resolution. For instance, the constitution establishes the judicial system of the country, which is adversarial in nature. The constitution also guarantees as a matter of fundamental rights, direct access to the High Court through a constitutional reference.

However, parties in litigation can engage in mediation outside the court process, then move the court to record a consent judgment. This procedure exists as a remote form of court-annexed mediation.

On the other hand, parties in a dispute that is not before a court may undertake mediation and conclude the mediation agreement as a contract inter partes enforceable and binding as between them, so long as it abides by the provisions of the Law of Contract Act.

Under customary law, mediation is applied in resolution of many disputes in Kenya. The notorious ones are boundary conflicts and family conflicts. In both cases, and especially in respect to boundary conflicts, parties in dispute bring the matter before a panel of elders who are drawn from respected members of the society. The elders listen to the parties and encourage them to come to a consensus. This serves to permit access to justice for the aggrieved parties as the consensus reached is binding, and various communities have internal enforcement mechanisms widely accepted by the given society.

Currently, there are efforts by the legal fraternity in Kenya and other parties to enhance legal and institutional frameworks governing mediation in general. The endeavour covers the whole gamut of Alternative Dispute resolution Mechanism hence it has been labeled as Court Annexed ADR. Parties who have presented their cases to court or about to do so get into mediation under the supervision of the court. A successful mediation is then made binding through the recording of a consent in court.

This initiative is purposed to address the problem of massive backlog of cases in the courts. Mediation, with its flexibility and expeditious nature may be able to bring down the level of backlog in the Courts.

The Rules committee has conducted a national exercise to solicit views from members of the public on the steps required to bring about changes to the civil procedure incorporating mediation among other modes of ADR. The Chartered Institute of Arbitrators was contracted to draft the Court Alternative Dispute Resolution Rules in difference to its wide experience in mediation.

In collaboration with other stakeholders in various professional organizations a draft of Court Mandated Mediation Rules has been formulated by the ADR task force. In drafting the mediation rules, the task force took into account the experiences of other jurisdictions within the commonwealth.

The final draft of the ADR rules was presented to the Rules Committee on 30th November 2004. They were then proposed to be introduced through a new order XLVB of the Civil Procedure Rules under the Civil Procedure Act.

One may note in passing that the form adopted by the proposed ADR rules is quite formal and annexed to the procedures governing the conduct of cases in the High Court. Informal mediation that may not require the use of writing is not provided for. The codification of mediation rules merely reflect the concept of mediation as viewed from a western paradigm. But this is what works for commercial ventures who are the likely consumers of the envisaged mediation.

Mediation and law in Uganda

Court annexed mediation was introduced in Uganda under Commercial Court mediation Pilot Project. The rules and procedures for this project were promulgated in September 2003. The framework involves the transfer of appropriate cases to mandatory mediation in order to facilitate an early settlement of disputes.

Under the project, the parties are enjoined to refer their disputes to mediation for resolution at no extra cost to the parties. All the cases filed in the commercial Court are to be referred to a mediation session. Here, every party must indicate in their pleadings whether they consent or oppose a referral of their case to mediation. No opting out of mediation is allowed except by order of a judge of the Commercial Court.

The mediation proceedings are to be completed within 30 days of the referral, although some limited extension of that time may be granted. The agreement reached between the parties at the Mediation Session is filed in Court as the Consent Judgment in the particular case. Mediation sessions are conducted under the auspices of the Centre for Arbitration and Dispute Resolution (CADER). The mediation referral mechanism is expected to be rolled out to the other Divisions of the High Court.

The anticipated mediation process is extremely informal and is done by trained experts in the particular field of dispute (including non-lawyers) and is to last for a maximum of two days only.

Mediation and law in the USA

There are various organizations that deal with mediation in USA. The American Arbitration Association for instance offers mediation services in addition to arbitration. However, the federal policy on mediation is particularly embodied in the Administrative Dispute Resolution Act 1996 (5 U.S.C Section 571 et seq) and the Negotiated Rule Making Act of 1996 (Section 561 et seq)which encourage the use of ADR to resolve disputes regarding federal agency programs.

The administrative Dispute resolution Act recognizes explicitly that ADR has been used in the private sector for many years, often yielding faster, less contentious decisions and that ADR "can lead to more creative, efficient and sensible outcomes"( Public Law 104-320 Section 2(3) and (4))

The law emphasizes confidentiality in the context of settlement negotiations which is protected under the federal rules of evidence. The rules preclude introduction into evidence of the parties' positions during negotiations. This is an acknowledgment that parties must be able to speak candidly regarding settlement. In a word, the mediation practices in the United States are buttressed by legislation ensuring confidentiality and setting up formal institutions to provide mediation services.

The international framework for mediation

Largely, the techniques of conflict management through pacific methods under international law embrace the process of mediation. This involves an attempt to resolve the dispute by the contending parties themselves or with the aid of other entities by the use of discussion and other fact finding methods (Shaw MN, International Law, Cambridge, Cambridge University Press, 4th ed. 1997 P.717) The Charter of the United Nations does recognize this fact as it requires:

"All member states to settle the international disputes by peaceful means in such a manner that international peace, security and justice are not endangered."(Article 2(3))

Indeed, the concept of mediation itself is founded on the principles of international law. States are more often than not bound by the law to apply pacific settlement of disputes except where the use of force is authorized and merited (United Nations General Assembly Resolution 2625(XXV)).

Mediations are also offered by internationally renowned institutions all over the globe. These institutions publish mediation rules that guide the mediators and the parties in mediations and are also source of skilled mediators.


In a nutshell, the fact that mediation is increasingly becoming useful as a dispute resolution method in Kenya has been noted. This is attributable to the failure and delays in our judicial system and the technical nature of matters coming up for resolution. Mediation is more appealing than other ADR methods in that it is not new having been a key dispute resolution method in the African communal set-up.

Further, the fact mediation still operates in a legal lacuna is also highlighted. The proposed legal amendments to the Civil Procedure to introduce the Court annexed mediation are also discussed. Case studies examined painfully show that Kenya is among the few black sheep in legislating on mediation other countries having gotten over it long ago. The Ugandan legal framework on mediation especially provides good food for thought for legal reforms in Kenya.

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