Chief David Maraga yesterday launched the Mediation Settlement Week at the Milimani law courts. This is the first time in our judicial history to have an initiative of such nature.
A settlement week is an important occasion for the public, the Judiciary and advocates. It provides an opportunity to wananchi with court cases (litigants) to have their disputes tabled before a mediator. It is also an open day for the courts for purposes of providing a form of interaction between judges, advocates, litigants and mediators.
A settlement week provides timely and cost-effective justice. It is expected that litigants and their advocates in selected court cases, who have already been notified, will meet at the designated rooms for private mediation sessions conducted by volunteer court-accredited mediators. Possibly a number of cases will be resolved by the end of the week. A number of accredited mediators, most of whom are also advocates, have signed up.
The court system is traditionally known to settle disputes through litigation — where parties or their advocates appear and argue cases before judges or magistrates and a determination is made. However, the 2010 Constitution provides for alternative forms of dispute resolution. Article 159 ( 2 ) provides that in resolving disputes, our courts should now promote the use of ADR, including mediation, arbitration, reconciliation and traditional dispute resolution mechanisms.
A mediation settlement system called the Court Annexed Mediation Project (Camp) has been running on a pilot basis within the Family and Commercial Divisions of the High Court in Milimani since April 2016. Disputes are screened by appointed mediation deputy registrars and, where appropriate, some cases have been referred for mediation.
According to a report on Camp for April 2016 to July 2017, court annexed mediation can be a key mechanism to reduce the problematic case delay and backlog in our courts. Mediation, if fully embraced, will promote and facilitate an expeditious and people-driven justice.
In commercial terms, statistics from the Judiciary indicate that the total value of cases referred to the Family and Commercial and Tax divisions in Milimani were in excess of Sh10 billion. The value of family cases was Sh2.1 billion, while commercial and tax disputes had a value of Sh8.6 billion. For the one year and three months Camp settled cases worth Sh787 million.
Ordinarily, such cases and the amounts involved would still be pending in court, where a case can take over five years to resolve. From an economic perspective, a substantial amount of money is released into the economy through a faster and effective dispute resolution process.
The CJ, following Camp’s success, in July, through Gazette notice No 6869 dated July 12, 2017, appointed a Task Force on Alternative Dispute Resolution Mechanisms Used to Access Justice in Kenya. The task force is mandated to take the achievements made in the pilot project to another level. This includes benchmarking existing models of court annexed mediation in other jurisdictions, suggesting financial initiatives to the mediation processes, exploring the possibility of formulating a legislative framework for mediation and developing a strategic plan for implementation of court annexed mediation. Eventually, the intention is to roll out mediation in all court stations in Kenya.
The 19-member task force is chaired by High Court judge Fred Ochieng’. It comprises judges from the Court of Appeal and the High Court Family Division, as well as officials from the Judicial Training Institute. Other important stakeholders represented include the Law Society of Kenya, the Office of the Attorney General, the Chartered Institute of Arbitrators, Law Reform Commission and Fida.
The Mediation Settlement Week therefore presents an excellent opportunity for the Judiciary and the taskforce to continue mapping out and understanding the use of mediation as an ADR mechanism, as well as the progress so far made in entrenching it in the legal system.
Advocate of the High Court and member of the Taskforce on Alternative Dispute Resolution
Mechanisms Used to Access Justice in Kenya-Court Annexed Mediation