Mediation helps disputing parties resolve their disputes and restore their relationships. It is recognised in Article 48 of the Constitution of Kenya (2010) as one of the ways through which access to justice is promoted. The Court Annexed Mediation (CAM) was first implemented in Kenya in April 2016 at the Commercial and Family Divisions of the Court.
Since the commencement of the CAM, significant progress has been made. By July 2017, CAM was reported to have unlocked more than $14 million (approximately Kshs 1.4 billion) which was held up in disputes. That represented a settlement rate of 53.8 percent in the Commercial and 55.7% in the Family Divisions. By July 2018, $24 million (Ksh 2.4 billion) was reported to have been unlocked rising to $40 million (Ksh 4 billion) by February 2019. The number of Judiciary Accredited Mediators had also risen to 499 as at March 2019 in comparison to less than one hundred accredited mediators in July 2017.
By 2018, the use of mediation had extended to the Milimani Children’s Court, the Milimani Chief Magistrate’s Commercial Court, the Environment and Land Court, the Employment and Labour Relations Court, as well as the Civil Division of the High Court. Furthermore, the CAM has also been launched in court stations away from Nairobi, the capital city. These include court stations in Eldoret, Garissa, Kakamega, Kisii, Kisumu, Machakos, Mombasa, Nakuru and Nyeri.
As the CAM continues to expand in the country, it faces some challenges. For example, some stations have inadequate space making it necessary for the mediation registry to share office space with other departments. For the same reasons, mediators sometimes have to wait in turn to attend to parties in an allocated mediation room. The judiciary is however planning to construct additional rooms at some stations and mediators are also allowed to conduct sessions away from the court premises.
In some instances, it has been difficult for mediators to contact disputing parties directly or to gain cooperation of the parties’ advocates. To address this, advocates and their parties are now required to indicate their full contact details as they file their matters. Additionally, some court stations carry out sensitisation sessions for advocates through meetings and for the general public through awareness activities organised by Court User Committees. Targeted programmes such as the Mediation Settlement Week and the Children’s Service Weeks have also been instrumental in creating greater awareness on the role and place of mediation within the justice system.
As the need for mediators continues to rise, together with the number of mediators; the questions of quality and standards arise. Judiciary Accredited Mediators are required to meet a minimum of 40 hours in training, have some mediation experience and more recently are expected to be mentored before they can be assigned mediation matters on their own. In addition, practice directions providing guidance on CAM were gazetted in 2018 and printed copies of a detailed mediation manual, code of ethics and frequently asked questions are freely available for both mediators and parties.
In the past three year, significant steps have been made in expanding the use of mediation to promote access to justice. The journey continues…