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Mediation plan will enhance access to justice, clear backlog

Article 159 (2) of the Constitution provides that in exercising judicial authority, courts should be guided by, among other principles, the promotion of alternative dispute resolution.

Alternative Dispute Resolution (ADR) refers to a set of practices aimed at resolution of disputes outside the courts. It involves techniques such as reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

Mediation is a voluntary, informal, consensual, confidential and non-binding dispute resolution process in which an impartial third party facilitates settlement between parties.

Court-annexed mediation therefore means that the mediation process is linked to the court process. Cases brought for litigation are screened and if suitable, are referred to mediation.

In October 2015, Chief Justice Willy Mutunga gazetted the Mediation (Pilot Project) Rules 2015, Legal Notice No. 197. Plans are now under way to launch the Court-annexed Mediation Pilot Programme at the Commercial and Family Divisions of the High Court at Milimani.

According to the new rules, every civil action instituted in court will be subjected to mandatory screening by the Mediation Deputy Registrar and those found suitable may be referred to mediation.

Where a case is referred to mediation, the Mediation Deputy Registrar will notify the parties within seven days.

A mediator will then be appointed and will enjoy the same protection and immunity as that granted to judicial officers and judges.

All communication during mediation is confidential and will not be admissible in evidence in court. Once the mediation concludes, the mediator files a report.

If a settlement has been reached, the agreement is signed and filed by the parties within ten days and it can be enforced as an order of the court.

Court-annexed mediation has been successful in other jurisdictions such as the United Kingdom, Malaysia, Korea, and Philippines in reducing the backlogs in the courts.

Before implementing the pilot programme, the Judiciary needs to take into account important factors including the potential cost of the programeme once it is implemented to ensure that it does not impede access to justice; the need to increase public awareness of what court-annexed mediation entails and its benefits; the lack of capacity in terms of personnel who can handle disputes using mediation; the need to preserve the integrity of the mediation process even as it is linked to the court process and the need for the program has to draw from the culture of the Kenyan people and not just a replication of the Western model of mediation.

It has great potential for improving access to justice and reducing the backlog in the courts but it has to take into account these factors to increase its chances of success and to be a good fit for the needs of Kenyans.

The writer is a lecturer at Riara Law School and practising advocate.

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