• The public generally thinks litigation is the sole method of dispute resolution
• However, people are increasingly embracing mediation, especially in the Family, Commercial and Civil divisions
The judiciary has for a long time tried to solve the never-ending problem of case backlog. To speed up case resolution, one of the options it adopted is mediation, which is hoped will also make justice affordable.
The Star interviewed Mediation Registrar Caroline Kendagor to understand the challenges and success of the mediation process and just whether or not Kenyans have embraced it.
The Star: What are the challenges that you faced since mediation was introduced?
Carole Kendagor: Some challenges experienced include resistance to mediation by advocates who prefer the adversarial resolution of cases, which involves having a case resolved by a judge. We have undertaken to use forums such as bar-bench meetings to sensitise advocates on court-annexed mediation.
Another challenge experienced is the scarcity of mediation rooms. There are currently two mediation rooms in use at the Milimani law courts. We project that with the constant growth of mediation, more rooms will be needed. We have partnered with various actors in alternative dispute resolution (ADR) that we may use their amenities for mediation.
The final challenge experienced is the lack of information on court-annexed mediation by members of the public. We have, however, made use of forums such as the Nairobi International Trade Fair to sensitise members of the public. We have also set out various information desks countrywide, where members of the public can attain the said information. Members also have access to information on court-annexed mediation from our website and social media platforms. Finally, the judiciary, through the Court Users Committee, works towards sensitising members of the public by partnering with local administration officers.
In your opinion, do you think Kenyans have embraced it? If yes, how has this been demonstrated? If no, why not?
Kenyans have embraced mediation, especially in the Family, Commercial and Civil divisions. They have also embraced mediation in the Environment and Land Court, the Employment and Labour Relations Court, the Chief Magistrate's Court and the Children’s Court. The settlements ratio of the Family Division and Children’s Court is 57.35 per cent. The parties may also register partial agreements, whereby some of their issues are resolved with the help of a mediator and the remaining issues resolved by way of judgment by the honourable judge or magistrate.
There is, however, more that can be done to ensure that more members of the public embrace court-annexed mediation. The task force, through the Committee on Culture Change Strategy and Curriculum development, has been given the mandate to formulate strategies that would facilitate a shift in the general perspective of the public on litigation being the sole method of dispute resolution. The committee will seek to empower various sections of the public to embrace mediation as being a viable method of dispute resolution by conducting trainings on mediation, developing a culture change strategy and developing guidelines of training for mediators and training modules for lawyers.
Matters in mediation are expected to be concluded in 60 days, while the average time taken to conclude matters in litigation is three yearsMediation Registrar Caroline Kendagor
Having dealt with cases in court from the perspective of magistrate/registrar, which is more tedious and time-consuming?
Handling cases in litigation is more time-consuming due to the requirement to follow the set procedure. Mediation by nature is more informal than litigation, making it a largely party-driven process.
In litigation, the onus is on the magistrate to come up with a solution to the dispute between the parties by way of judgment or ruling, while in mediation, the parties are given the chance to solve their dispute. In court-annexed mediation, parties are only expected to attend court mentions for the purpose of monitoring the progress of mediation, which is unlike in litigation, where parties are expected in court on numerous occasions before the matter is concluded. Matters in mediation are expected to be concluded in 60 days, while the average time taken to conclude matters in litigation is three years. Mediation, for this reason, is less tedious than litigation.
The mediators are people hired by the judiciary? Who pays their salary? Is it a full-time job like that of the judges?
The mediators are not employees of the judiciary. Rather, they have been accredited by the Mediation Accreditation Committee to handle the matters referred to court-annexed mediation.
The mediators are not permanently stationed at the judiciary and handle matters only when appointed to do so by the Mediation Deputy Registrar. The mediators are currently being paid by the judiciary.
Are there instances where parties decide on their own independent mediator? If yes, who pays such a mediator?
Only mediators accredited by the Mediation Accreditation Committee are permitted to handle matters in court-annexed mediation. As such, parties cannot decide on their own independent mediators while participating in court-annexed mediation. Parties whose matters have been referred to mediation are at liberty to select a mediator of their choice other than the mediator appointed by the Mediation Deputy Registrar from the list of accredited mediators.
Are there cases where parties failed to solve through mediation? What happens?
The settlement rate is currently at 50.9 per cent. The cases in which parties fail to settle are streamed back to the litigation process upon the filing of a mediator’s report, stating that a settlement has not been reached.