Sensitise public on win-win dispute solving mediation

Milimani Law Courts, Nairobi. FILE PHOTO | NMG 

By CATHY MPUTHIA

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Summary

• Mediation is recognised by the Constitution as one of the ways of solving disputes. Article 159 (2) (c) obligates the Judiciary to promote alternative forms of dispute resolution such as mediation.
• The Judiciary initiated mediation on a pilot basis in April 2016 in the Commercial and Family Divisions of the Milimani Law Courts, Nairobi.
• There are several advantages of embracing mediation as an alternative to the normal court process (litigation).
• They include; speedy resolution of disputes, reduction in cases backlog, win-win solutions and reduced cost of settling disputes.

Mediation is an alternative dispute resolution (ADR) mechanism where parties solve their grivances with the help of an impartial third party referred to as a mediator.

Mediation is recognised by the Constitution as one of the ways of solving disputes. Article 159 (2) (c) obligates the Judiciary to promote alternative forms of dispute resolution such as mediation.

The Judiciary initiated mediation on a pilot basis in April 2016 in the Commercial and Family Divisions of the Milimani Law Courts, Nairobi.

There are several advantages of embracing mediation as an alternative to the normal court process (litigation). They include; speedy resolution of disputes, reduction in cases backlog, win-win solutions and reduced cost of settling disputes.

On June 8, 2017 during the Court Annexed Mediation media breakfast briefing, Chief Justice (CJ) David Maraga noted that there was a reduction in time expended in settling disputes from 50 months in Commercial & Tax Division and 43 months in Family Division to an average of 69 days during the pilot phase that took place from April 2016 to July 2017.

The CJ further pointed out a somewhat miracle that mediation had ushered in terms of expeditious dispute resolution by citing a case that had been in court for 15 years, but was solved only within 30 days thanks to mediation.

Expeditious dispute resolution does not just mean reduction in the back log of cases but it also ensures flourishing of economy through release of funds that could have otherwise been held up in litigation.

During the launch of Mediation Settlement Week on December 4, 2017, the CJ noted that over Sh1.4 billion had already been released back to the economy as a result of successful mediation settlement.

Another advantage with mediation is that parties to a dispute can craft innovative solutions with the help of a mediator that will benefit each party as opposed to litigation where one party wins and the other loses.

Worse still the losing party will in most instances be compelled to pay the costs of the suit.

With mediation each party is involved in bargaining and compromise and thus no party will leave the table empty handed. Further relationships between the conflicting parties will be intact at the end of the dispute.

The cost of mediation is also very competitive especially if the cost of the subject matter in dispute is substantial.

After the successful pilot phase Court Annexed Mediation is now a permanent dispute resolution mechanism entrenched in our courts. The full Court Annexed Mediation was commenced by the gazettement of ADR Task Force on Mediation in July 2017 by the CJ.

The task force will roll out the mediation programme in courts throughout the country as opposed to the pilot phase, which was just restricted to two divisions in the Nairobi Milimani Courts.

The CJ in the June 8, 2017 speech, however, noted that mediation is facing challenges such as resistance by advocates and lack of information on mediation by the public.

Greater sensitisation of mediation to both advocates and members of the public will thus go a long in ensuring that mediation is firmly embraced as the preferred mode of dispute resolution.