Mediation in Kenya
What is mediation?
Mediation is a voluntary process where an impartial or neutral party assists two or more conflicting parties in settling their disagreement or conflict. It allows parties to resolve disputes outside of the traditional court proceedings. The mediator does not impose or make decisions for the parties but helps them identify the issues at hand, explore the options available, and finally come up with a common ground.
Is mediation allowed in Kenya?
Yes, article 159 (2) (c) of the constitution of Kenya advocates for the use of mediation as a form of alternative dispute resolution (ADR). It means mediation is legally binding and the agreement of the parties can be enforced in court.
Which types of cases use mediation?
Mediation can be applied in both the civil and criminal cases. However, many criminal cases, more so those touching at children in Kenya are not mediated due to the nature of the offenses and the need for state involvement in criminal matters.
What is the mediation process like?
It starts with initiating mediation by the parties, introducing the case, negotiating with the parties, establishing agreement, and closing.
How long does mediation take?
There is no specific timeline of how long a mediation takes or should take, but one certain thing is that it takes a few hours to a week. However, in rare cases, it can take over a week. Various factors determine how long a mediation takes or should take. They include the readiness of the parties to participate in the mediation, the complexity of the case, and the mediator’s schedule.
Must one use a court-chosen mediator?
No, you can also use a private mediator. The outcome of a private mediator is also legally binding (recognized). However, there is a need to have the agreement registered and enforced by the court; nevertheless, if the parties are okay with implementing the outcome without the court’s involvement, well and good.
What is Court-Annexed Mediation?
It is a mechanism introduced by the Kenyan judiciary to give parties in conflict a chance to resolve their conflict expeditiously and amicably with the guidance of a mediator.
What are the benefits of mediation?
Faster: it is quicker to solve cases using mediation. A case can be solved in a single session while using mediation instead of the court, which is affected by a backlog of hundreds of thousands of cases.
Cost-effective: it is less expensive to pay for mediation, considering one does not have to pay for the long-term and high litigation fees.
Dignity: mediation ensures your privacy is respected as you don’t have to expose yourself in the court’s sessions and media glare.
Voluntary: you only get to mediation out of your own will. It makes it easier to come up with an outcome. As a result, there is a high rate of compliance and positive results.
Relationships are preserved: In many cases, conflict arises between parties who know each other. Mediation helps to prevent breakage or restore the relationship, which some people have spent years building; hence, it should be cherished.
A culture of peace: when people solve cases amicably and outside the court, they reinforce the belief that conflicts can be solved without war or drama, now and in the future.
Flexible: the process is not rigid, and parties are in control of the process and can make a wide range of adjustments.
Satisfaction: the agreement is between or among the parties, hence fulfilling.
Neutrality or impartiality: the mediator is independent and only helps the parties to agree and not to take sides.
More options: if a solution is not met through mediation, more avenues, such as the court, can be explored.
Enforceable: the outcome of the mediation is binding. The parties and courts respect it as the decision to be implemented.
