• Government keen on dealing with civil case backlog at Judiciary to free courts to hear criminal cases.
• Mediation committee to be established to accredit mediators, facilitate proceedings.
Most civil disputes are likely be heard by mediators under a Bill proposed by government.
The aim is to reduce the mounting case backlog so the courts can focus on criminal cases. At this time, mediation is not mandatory though it is encouraged. The Bill would establish a legal framework.
Mediation Bill, 2020 would establish a mediation committee to appoint mediators to hear and determine civil disputes.
The government-sponsored Bill was signed by former Majority leader Aden Duale.
The Bill says that a court before which a civil dispute is filed or is pending may refer it for mediation at any time before the final judgment is read.
Mediation is called for if the court believes it would facilitate a resolution of the dispute or part of it.
A referral to mediation will stay and discontinue court proceedings.
The alarming backlog of cases was among issues that featured in the recent public dispute pitting Chief Justice David Maraga against President Uhuru Kenyatta.
The CJ said the shortage of judges – owing to the President's delayed appointment of 41 nominees of the Judicial Service Commission - was exacerbating the situation and delaying justice in both criminal and civil cases.
The state denies the President is obliged to approve all nominees and the President said some nominees had unspecified integrity issues.
President Kenyatta cited inefficiencies by the Judiciary and, by extension, the Chief Justice.
Government sources told to the Star the proposed alternative dispute infrastructure aims to reduce the case backlog and make the Judiciary more efficient.
Under the Bill, the Attorney General would appoint a mediation committee comprising nine members seconded by various bodies or agencies.
The members would be nominated by the Chief Justice, the Attorney General, the Law Society of Kenya, the International Association of Women Lawyers-Kenya, Dispute and Conflict Resolution International; Institute of Certified Public Secretaries; Kenya Private Sector Alliance, Central Organsation of Trade Unions and the Federation of Kenya Employers.
“The AG shall appoint a Registrar and other officers as may be necessary,” the Bill reads. Members would serve for a three-year term, renewable once.
Members would serve part-time and be paid allowances determined by the AG in consultation with the Salaries and Remunertion Commission.
This team would receive applications for accreditation from people who intend to practise as mediators.
Advocates would be required, prior to initiating judicial proceedings, to advise a party they are representing in a dispute to consider mediation.
“A party shall file a mediation certificate at the time of commencing the judicial proceedings, stating that mediation has been considered,” the Bill reads.
At the start, parties will enter into a mediation agreement in writing – outlining the appointment of a mediator, costs, and other relevant matters.
The proposed law says parties are free to appoint a mediator or may request the committee to appoint a mediator.
“There shall be one mediator – unless the parties agree otherwise. Where there is more than one mediator, they will act jointly,” the Bill reads.
Once parties agree, the mediator would draw up a settlement agreement setting out terms of the agreement.
Such an agreement, the Bill says, would be binding on the parties who would be expected to sign; a copy would be tiven to each party.
Another copy would be sent to the court from where the dispute was referred – resolved or not.
The mediation process ends when the parties execute a settlement agreement or when the mediator declares further mediation is not possible.
Parties can also choose to declare to the mediator that the process is terminated or if a party informs the mediator or the other party that it is terminated.
Litigants may be represented by an advocate, expert, or any other person they choose but those who aren’t party to the mediation will not attend the proceedings.
“A mediator may – where necessary and if parties agree to pay the expenses – obtain expert advice on a technical aspect of a dispute," the Bill reads.
Records, reports, settlement agreements and any document required in the course of mediation will be treated as confidential.
“They shall not be used as evidence or be subject to discovery in any judicial proceedings,” the proposed law says.
The confidentiality requirement, however, will not apply where disclosure is required by law or is necessary to protect a child or vulnerable person.
Exemptions are allowed in cases involving death threats, when it is necessary to report the likely commission of an offence and for implementation of a settlement agreement.
(Edited by V. Graham)