Court-Annexed Mediation – The Kenyan Model of Judicial Mediation
Court-annexed mediation is a Kenyan judiciary program started in April 2016 to reduce the case backlog in courts. The program results from Article 159 (2) (c) of the Kenyan constitution, which gives judiciary power and authority to embrace mediation. The article states, ‘’ alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted’’. Therefore, court-annexed mediation is a form of alternative dispute resolution used by the judiciary to sort out conflict using mediation. The judiciary sees mediation as a vital tool for people-centered service delivery.
The Benefits of Court-Annexed Mediation
Backlog of cases reduction
Mending contractual and family relationships
Increased customer satisfaction index
A win-win situation
Release of funds previously locked up in litigation back to the economy
Cost-effective
Disputes resolved within 60 days
Code of Conduct for Court-Annexed Mediators
Impartiality: a mediator should not take a side in a matter and should remain neutral and avoid bias.
Competence: a mediator should have the right skills and experience while handling a matter. The skills and experience are gained through training and mentorship.
Confidentiality: a mediation process should remain private and only between the parties.
The Role of the Judiciary in Court-Annexed Mediation
Refer cases: courts recommend parties to seek mediation rather than using litigation.
Creating awareness: courts play a big role in sensitizing the public and court users to the existence and the need to use mediation.
Supervision: the judiciary oversees the operations and mediation processes to ensure legal guidelines and standards are followed. It also ensures the parties’ experience is harmonized across all stations.
Legal Framework
The Constitution of Kenya:
Gives courts authority and recognizes the use of mediation.
Civil Procedure Act 2022:
Outlines the process for civil cases.
The Civil Procedure (Court Annexed Mediation) Rules 2022:
Outlines the framework of the court-annexed mediation in Kenya.
Court Annexed Mediation Practice and Procedures Manual:
The manual guides judges, magistrates, registers, deputy registers, kadhis, judiciary staff, mediators, advocates, and parties on the process to follow while referring matters to court-annexed mediation. The manual provides important sections outlining screening and referral of matters; roles of the parties and advocates in mediation; the standards and expectations of a mediator; issues about non-compliance by parties; mediation settlement agreement; enforcement of settlement agreements; private mediation agreements and other essential areas that will improve the effectiveness in mediation.
Note: Any national or international law that gives room for court-annexed mediation falls under this category.
Appointment of Mediators.
The court appoints a mediator that fits the parties from the register of accredited mediators. On its appointments, it considers:
The type of the case
The court station
The availability of the mediator
The matters the mediator is handling at the time
The skills and experience of the mediator.
Register of Accredited Mediators
It is a list of all mediators the judiciary has verified to mediate matters arising from the courts.
Achievement of Court-Annexed Mediation
Apart from reducing the number of cases in court, it has resulted in the release of billions of money held by cases to the economy. There has also been opening of court-annexed mediation registries countrywide to make judicial mediation accessible.
