Justice is a cornerstone of society and a fundamental right that every citizen deserves to access. However, justice is not confined to the courtroom alone. It can be achieved through various avenues, and the Justice system has a responsibility to embrace and advocate for the full spectrum of dispute resolution methods, including mediation. Mediation stands out as a powerful, voluntary, and collaborative process that empowers parties to take control of their outcomes. By choosing mediation, individuals can often resolve disputes more efficiently, amicably, and in a manner that best serves their unique interests. It is essential that all parties involved in the mediation process not only recognize the value of mediation but also possess the necessary knowledge and skills to actively guide and manage the process effectively.
Disputes referred to the mediation process allow parties to achieve an effective resolution without incurring significant costs, experiencing undue stress, or damaging their relationships. Mediation provides a collaborative and cost-efficient alternative to traditional litigation, enabling disputing parties to maintain positive connections while finding mutually agreeable solutions. Kenya’s judiciary has continued to enact rules to help improve the use of Mediation as an Alternative Dispute Resolution and help parties that undertake the mediation process to resolve their dispute. Through Legal Notice No.145 of the Civil Procedure Act (Cap 21) Court-Annexed Mediation Rules, 2022, the rules have outlined the procedure to mediators regarding how the intake of the mediation process is to be carried out up to the finalization of the process whether the parties agree or not.
According to the Court-Annexed Mediation Rules 2022, mediation is defined as “an informal and non-adversarial process, conducted either physically or virtually, in which a mediator facilitates and encourages the resolution of a dispute between two or more parties. However, it does not include efforts by a judge or magistrate to settle a dispute during judicial proceedings.” This definition applies to both Court-Annexed Mediation and Private Mediation, aligning with Article 159 of the Constitution of Kenya 2010 which emphasizes that courts should be guided by the principle of promoting Alternative Dispute Resolution mechanisms, including reconciliation, mediation, arbitration, and traditional dispute resolution methods. These mechanisms are encouraged provided they do not violate the Bill of Rights, are not repugnant to justice and morality, or are inconsistent with the Constitution or any written law.
Due to its confidential and private nature, mediation is increasingly favored by parties involved in family and business disputes. It is also cost-effective and helps preserve relationships, making it an attractive option for resolving conflicts amicably.
For the mediation process to be fully effective and to reach a fair and conclusive resolution, the mediator needs to exercise due diligence by adhering to key principles such as proper structuring, professionalism, procedural integrity, transparency, and accountability. These principles form the foundation of a credible and trustworthy mediation process. To support this, the Mediation Rules 2022 introduce standardized mediation forms designed to ensure best practices within the mediation system. These forms not only uphold the principles of justice and fairness but also contribute to the professionalization and growth of mediation as a respected dispute resolution mechanism in Kenya. By embracing these tools and principles, mediators can foster confidence in the process, promote the rule of law, and advance the mediation profession, ultimately benefiting individuals, businesses, and the broader justice system. While all disputes and conflicts are unique and require specific approaches, there are good practices that should inform the approaches of all mediators.
This article critically examines some of the mediation forms outlined in the schedule of the Court-Annexed Mediation Rules 2022 and their roles in facilitating the mediation process.
Once a case has been screened and deemed suitable for mediation, a confidential file is opened and maintained at the mediation registry, separate from the court file. The matter is then referred for mediation through the court-annexed mediation process. This referral is made by the Mediation Registrar, who issues a written order assigning the case to a qualified mediator—specifically, a mediator whose name is listed on the Court-Annexed Mediation Committee’s Register of accredited mediators. This step is formalized through Form 1, Notice to Referral of Case to Mediation which also notifies the disputing parties and their advocates within seven days of the screening.
Following this, the parties and/or their advocates are given an additional seven days to submit a Case Summary using Form 2, which must be served to the mediator and all other parties involved. It should be underscored that the purpose of these forms is to ensure that all the parties understand and are prepared that their matter has been referred for mediation process. These forms serve to organize an exchange of case summaries and document bundles between the parties and the mediator.
The other form that is transmitted to the Mediator is Form 3, Notice of Appointment as a Mediator, by the Mediation Deputy Registrar which certifies that the respective mediator can proceed to immediately fix a date for the mediation process. These forms further have details of the parties including the mediation number, arising out of case number and the case type.
While these initial stages are crucial for initiating the mediation process, they are not without challenges that could potentially derail or delay the proceedings. For instance, if a qualified mediator fails to check their email inbox, including spam folders, they might miss the notification of a case referral, causing unnecessary delays in a process designed to expedite dispute resolution. Similarly, the 60-day window allocated for mediation could be compromised if the mediator is unaware of the referral and fails to initiate the process promptly. Additionally, in regions with limited or no internet access, there is a significant risk that the mediator may not receive the Notice of Referral at all, further hindering the process. These issues highlight the need for robust communication systems and contingency plans to ensure the smooth operation of the mediation process, particularly in areas with technological limitations. Addressing these challenges is essential to maintaining the efficiency and credibility of court-annexed mediation as a viable alternative dispute resolution mechanism.
To facilitate a smooth mediation process, the mediator must complete Form 4, the Notice of Acceptance or Declining of Appointment as a Mediator. This form is crucial in ensuring there is no conflict of interest and that the mediator remains impartial and neutral in the referred matter. With an underlying conflict of interest, the mediator is supposed to decline as this ultimately will undermine mediation.
After the mediator completes the necessary preparations for mediation, they are required to complete Form 5: Notice of Commencement of Mediation. This form is then sent to the involved parties or their legal representatives, with a copy forwarded to the Mediation Court Registrar. The purpose of Form 5 is to confirm the agreed-upon date, start time, and venue details for the mediation, if applicable. Additionally, the form specifies who is expected to attend the mediation. If a party intends to be represented by someone else, prior permission or authorization must be obtained.
In cases where a party is represented by another individual, Form 6 must be completed. This form provides details about the representative and confirms that all actions taken by them are within the authorized scope of their power. It also states that such actions will have the same legal effect as if they were carried out by the disputing party themselves.
For mediations involving companies, government entities, government agencies, or partnerships, the representatives of the disputing parties are required to complete Form 7. This form ensures that the representatives are duly authorized to act on behalf of the organization or entity they represent.
Another crucial document that ensures the credibility of the mediation process is Form 8, the Mediation Session Attendance Sheet. This form records essential details such as the date of the session, the venue, and the mediator, the officer in attendance, the parties present, and other relevant information. It must be completed for every session and endorsed by the mediator. This form serves as an official record of attendance and participation, further validating the integrity and transparency of the mediation process.
Form 9, the Agreement to Mediate/Statement of Understanding, is completed by the parties after the mediator has explained their role in the process, the roles of the parties, and the expectations for the mediation. This is also the appropriate time to clarify to the parties that there will be no summoning of witnesses, as the parties themselves are the decision-makers. The form reassures the parties about the confidentiality of the process and the impartiality of the mediator. It can also be considered a binding document for all individuals present during the session. The form also binds the parties to an agreement that they cannot request the mediator to testify against the other party, nor can they ask any other party to testify regarding statements or discussions that took place during the mediation. This provision reinforces the confidentiality of the process and ensures that all parties adhere to the principles of mediation, fostering an environment of trust and openness. This further emphasizes the reassurance to the parties that everyone involved in the mediation is impartial and committed to a fair and confidential process.
Related to Form 9 is Form 10, the Confidentiality and Inadmissibility Agreement, which obligates all parties involved in the mediation to maintain strict confidentiality regarding all information obtained, whether orally or in written form, during the process. This includes the mediator’s notes, which are also protected under this agreement. The information disclosed during mediation cannot be shared or used outside the mediation unless a party is legally required to do so. This agreement underscores the importance of privacy and trust in the mediation process, ensuring that all discussions remain confidential and inadmissible in any other proceedings.
If one or both parties fail to honor the mediation process, the mediator is required to complete Certificate of Non-Compliance Form Number 11. However, mediators should note that this form cannot be filled out solely because a party misses a single session. Instead, the mediator must demonstrate that they have made reasonable efforts to contact and reach out to the party in question. The form is to be completed only when it becomes evident that the party has fully refused to comply with the mediation process. This ensures that the mediator has exhausted all possible avenues to engage the party before declaring non-compliance. This provision can also apply when one of the parties refuses to negotiate in good faith, demonstrating an intent to waste the court’s time rather than genuinely seeking to resolve the dispute. Such parties may continuously shift the goals of the mediation, undermining the process and failing to honor the principles of confidentiality and cooperation.
In such cases, the mediator may file non-compliance, to document the lack of progress due to the party’s non-compliance or bad faith. This ensures that the mediator’s efforts are recognized and that the court is informed of the party’s failure to engage constructively in the mediation process. Mediators must always keep in mind that the principle of voluntariness in mediation is fundamental and must be respected. If a party provides valid reasons for being unable to continue with the mediation process, the mediator should honor such a request. This ensures that the mediation process remains consensual and respectful of each party’s autonomy and circumstances. Upholding this principle is essential to maintaining the integrity and fairness of the mediation process. The mediator should also remain mindful of any signs of hostility or lack of cooperation from the advocates or parties involved. Such behavior should be promptly reported to the mediation secretariat to ensure appropriate measures can be implemented to address and resolve these issues effectively.
If the parties resolve their issues amicably, the mediator completes and files Form 12, the Settlement Agreement. This document outlines the outcomes of the mediation, detailing the specific agreements reached by the parties to resolve the dispute. It also includes the dates on which the agreement was finalized. The Settlement Agreement serves as a formal record of the resolution, ensuring clarity and mutual understanding between the parties regarding the terms of their agreement.
Rule 41 of the Court-Annexed Mediation Rules stipulates that each mediator is entitled to payment of a fee upon the completion of the mediation process. This payment is facilitated by the mediator filing Form 13, The Mediator’s Report. This form specifies whether the parties reached a full settlement, a partial settlement, or no settlement at all. The Mediator’s Report serves as a formal record of the mediation outcome and is essential for processing the mediator’s fees, ensuring that mediators are compensated for their services per the rules.
Although the mediation process is guided by these established rules to achieve the desired outcomes for the parties, certain challenges can make the process difficult to sustain. For instance, some parties may lack access to communication technology, such as internet connectivity or devices, which could enable virtual mediation. As a result, they are forced to travel long distances to attend physical mediation sessions. This not only increases the burden on the parties but may also delay the resolution of disputes, particularly for those in remote or underserved areas. Such shortfalls highlight the need for greater accessibility and inclusivity in the mediation process to ensure it remains a viable and effective option for all parties.
This article focuses on a specialized class of employment law and human rights issues where there an overlap exists between matters of creed or religion and the legal relationship. In...
By Ariel Kirzner, Bruce AllyThis is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the...
By Gini NelsonReframing Peace Mediation with Dr Owen Frazer: A Deep Dive into Conflict Transformation In this episode of the Conflict Tipping podcast, host Laura May engages in a thought-provoking conversation with...
By Laura May
