Mediation is not a new concept in the Kenyan culture. It was traditionally used to settle disputes. It was used to resolve all manner of community disputes: domestic disputes, land issues, neighborly conflict among others. To date, domestic disputes are resolved through mediation at a family level. The parents are notified when there is need for intervention. They meet with the couple, listen to their dispute and mediate, the goal being to reconcile the couple. In most instances, the dispute does not go beyond the immediate family unit. The purpose is to keep the dispute within the family and not broadcast the disagreement ‘outside’. In other disputes such as land or other community disagreements, Village ‘Elders’ were called upon to resolve the disputes using various methods that included negotiation, arbitration or mediation. Many disputes are still resolved in this manner.
Mediation was first introduced in the Kenya Judiciary in 2016 as an alternative dispute resolution method of settling cases. Since then, the court system has been moving aggressively towards mediation for thousands of cases that have been in the judicial system for a long time. Mediation is being promoted as a faster and cheaper way to attain peaceful resolutions. It is also a way to help people reach amicable agreements, instead of letting a court system decide for them. It is very important to resolve conflicts amicably because, apart from the substantive issues covered in any dispute, there is usually a relationship that needs restoring or maintaining and this is very important as those involved in disputes are either family, friends or business associates.
Information is still scarce amongst the Kenyan population about the practice of mediation. This is evident because the number of cases filed at the courts continue to rise. The Judiciary in its annual report has noted that there were 533,350 pending cases at the end of the Financial Year 2016/2017 an increase of 7% from 499,341 pending cases at the close of the Financial Year 2015/2016.
Generally, those that tend to know about mediation are those with open court cases and whom the Judiciary has referred to the court-mandated mediation. The Judiciary could do more in terms of spreading the ‘gospel of mediation’ through media outlets and through the legal fraternity such as The Law Society of Kenya (LSK). More and more advocates of the High Court of Kenya are practicing mediation as well.
As the Judiciary continues to educate the masses on the advantages of mediation as an alternative dispute resolution method, they are also slowly introducing Online Dispute Resolution as another option. This method has not taken root yet as Kenya’s older population is not tech savvy. The younger Kenyan population, (18-35 yrs) is well-versed with technology and as they age and have need to resolve cases, the need for online dispute resolution will increase. Indeed, it is likely to inflate as this age group make over 70% of the population,
In early 2020 when COVID-19 hit, the Judiciary introduced virtual mediation due to the restricted movement at the time. The method was not fully embraceable as most people are challenged in accessing the technology required. The concept was also strange as many are used to only face-to-face interactions. Indeed, many people rejected the online intervention because some had not even heard of mediation.
In Kenya, Chiefs are used to resolve disputes amongst local communities. Chiefs are personnel at the lowest level of the Government’s Ministry of Internal Affairs. They have offices in all communities. The local Chiefs listen to disputes within their jurisdictions, assisted by village elders. Together they help resolve civil conflicts while referring criminal cases to the police. Chiefs also update the local communities on new government policies that affect them. Most people who seek the services of a Chief cannot afford the cost of filing cases in court. Once they go to their local Chief to complain, the other party is summoned to discuss and resolve the issues. The Chief acts as an arbitrator therefore listens and makes a decision. Traditionally, chiefs were village elders and were appointed from the community. They were not well-educated but that is slowly changing as younger people are opting for these positions.
Cases that are presented at local Chief’s offices include but are not limited to domestic violence, child custody and welfare, tenant/landlord issues, domestic/labor disputes. These include mainly domestic workers and their employers and Chiefs also deal with community disputes such as trying to eliminate illicit alcohol in the neighborhoods and mediating between delinquent youth who the neighbors have identified as harassing their community.
Since September 2018, this author has been volunteering as a Mediator and counselor for several hours each week in one of the local Chief’s (2) offices in RoySambu, Nairobi. She introduced mediation to the community as an alternate dispute resolution method. The local residents have appreciated the neutral third party professional intervention as many issues have been resolved amicably. In local public meetings (Barazas) that Chief holds regularly, he has been discussing the need for mediation and inviting the Mediator to articulate the need for mediation as an ADR. As more and more people continue to embrace the practice, there will be more local demand and a definite need for a full-time mediator.
After several attempts over many years, on 10 May 2022 the Nigerian Parliament passed a new Commercial Arbitration and Mediation Bill (H.B. 91). The Bill is currently awaiting signature of...By Hiro Aragaki