Mediation as an alternative dispute resolution (ADR),where parties resolve their disputes with the assistance of a third party, called a mediator has been embraced by the Kenyan judiciary as an avenue for delivering expeditious people driven Justice.
Article 159 of the Constitution mandates the Judiciary to promote Alternative Dispute Resolution(ADR) in the administration of Justice.
A mediation Pilot Project Rules,2015, has been rolled out and marks the beginning of this journey.
As Kenya moves to accept this transformation agenda, the awakening that “there is another way of resolving disputes, the original way, a realization that we can solve disputes without slugging it out in court, guided by those who are trained to dispense justice faster and all parties walk out winners,” an urgent need for training and filling the information vacuum arises.
Drop of revenue
Unfortunately, ADR is frowned upon by some advocates who think it translates into a drop of revenue.
Some lawyers, ADR judges say, advice clients not to seek this alternative remedy!
Hon. Justice Fred Ochieng while giving a brief recently on Court Annexed Mediation said lawyers do not need to worry themselves as it may,indeed, be the opposite.
“It is in fact an increase in revenue, you can still advice your client to pursue mediation, take up instructions, and more cases and focus on those which cannot be mediated in the morning and be the mediator in the afternoon…” the judge said.
According to the judge, the challenge facing ADR is sensitization and creation of awareness among the public and lawyers.
“It is our responsibility to make people accept the important change taking place,” justice Ochieng said.
ADR takes off the court load to focus better on cases that cannot be mediated, the judge explained.
The mediators must be the right professionals, people who work with certain ethos, as the success or failure of the mediation will depend on them.
There are so far 110 trained professionals ,35 outside Nairobi, as the judiciary plans to roll out the plan into the counties, and 40 applicants among them lawyers are awaiting vetting.
It was observed that training needs be identified to find suitable people to serve as mediators.
Impact on economy
Chief justice David Maraga said foreign investors are now keen on the existence of ADR processes, especially Court Annexed Mediation.
The CJ who rolled out the Court Annexed Mediation project at the Stanley hotel on June 8 2017 said a pilot programme has been successfully tested in the High Court’s Family and Commercial divisions in Nairobi but he decried a seeming vacuum in awareness.
“The people of Kenya need to know that litigation alone as a form of dispute resolution is no longer sustainable. We need to educate the masses that there are easier and faster ways to resolve disputes,” he said.
He said KSh500million that had been locked up in litigation had been freed back to the economy through successful conclusion of 25 commercial disputes through mediation.
“The Commercial Division is currently holding cases valued at KSh4.4billion that can be resolved through mutual agreement by the parties pursuing ADR,” the CJ said.
Deputy CJ, Hon. Justice Philomena Mwilu, MGH, said Social Workers can be tapped in Family matters to serve as mediators. She said in mediation all parties walk out as winners and reassured lawyers that “ADR is not a drop in revenue.”
An eleven member committee ironed out the ADR manual.
You can download the Judiciary Mediation Manual 2016 at www.judiciary.go.ke