Advocate of the High Court
Court Annexed Mediation
Family and Commercial Division
Family Division
Family Divisions
High Court
Paul Wanga
Sub-Saharan Africa
World Bank

Court annexed mediation is the new frontier

Court annexed mediation is the new frontier

The success of the pilot project contributed to Kenya’s ranking as a country where there is ease of doing business. FILE PHOTO | NMG

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 the challenges associated with litigation. Indeed even in some cases that have been successfully 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 (ADR) mechanisms namely reconciliation, mediation, and arbitration among other forms of dispute resolution. Commendably, the Judiciary has taken key strides to institutionalise 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 professional and clergy who have received formal training and certification to become mediators.After screening, litigants are notified to appear before a mediator whose costs are born by the Judiciary. Unlike judges, mediators do not decide the cases but play the role of facilitating disputants to try and arrive their own solutions. On the understanding that mediation is a confidential process, a mediator encourages parties to agree on a solution.Where parties agree, a 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 a closure.Where parties fail to agree, a 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 Mililani Commercial and Family Divisions of the High Court from April, 2016 to May, 2017. Commercial division because it handles business related disputes like 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 impacts negatively on the economic growth of our country. 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 overemphasized. An evaluation of the pilot project showed that in the Family and Commercial Division, the settlement rates was 55.7 percent and 53 percent respectively and approximately Kshs.1.4 Billion released back to the economy.The success of the pilot project contributed to Kenya’s ranking as a country where there is ease of doing business. The World Bank report on Ease of Business Index 2017 ranked Kenya at position three in Sub-Saharan Africa.Paul Wanga, Advocate of the High Court of Kenya.

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