Court Annexed Mediation
Article by Rubby Kilonzo
For years, Kenya’s judiciary has been burdened by incredible amounts of case backlog essentially sucking out justice from a tired and frustrated citizenry. The phrase “justice delayed is justice denied” resonates all too well within the country’s legal landscape, where case after agonizingly slow-moving legal case, pends for years on end sometimes even longer. However, a new tactic is on the rise that claims to be able to change this narrative: court-annexed mediation.
Court-annexed mediation generally refers to a process whereby parties in dispute are referred by the court to try to facilitate the resolution of their issues amicably before proceeding for trial. The alternative dispute resolution process became attractive in Kenya owing to the judiciary’s problems with backlog of cases. Court-annexed mediation is an alternative to traditional litigation, which has been long overdue and provides for a faster, more collaborative, and less adversarial way of resolving disputes than traditional dispute resolution.
One of the most attractive features of court-annexed mediation is its capacity to significantly cut down on the numbers of cases jamming Kenya’s courts. By taking parties away from the courtrooms, it obviously releases a good amount of time and other resources for the courts to utilize in addressing the many really complex cases that do genuinely require judicial intervention. This will not only expedite the resolution process for those involved but also enhance the efficiency of the entire judicial system. For many Kenyans, this could mean waiting years for a court date instead of having their matters resolved within months.
The court-annexed mediation process is also particularly well suited for Kenya’s cultural context, where, traditionally, community-based mechanisms for resolving disputes have been integral to the lives of people. The approach to mediation itself, informed by the principles of dialogue, mutual understanding, and compromise, easily finds affinity with Kenya’s rich heritage of elders’ councils and communal discussions aimed at conflict resolution. Therefore, it is in many ways that court-annexed mediation gives an approach to justice that resonates with culture—quite familiar and effective at the same time.
While court-annexed mediation is very promising, realization of its success is dependent on a number of factors. Top on the list is the level of the awareness and acceptance of mediation by the public. Many people in the country still have the traditional stand that the only sound avenue of justice is through formal courts, and since mediation has a long cultural background, public education programs would be vital in making mediation a reality. However, a successful implementation of court-annexed mediation requires there to be a number of qualified and certified mediators to oversee the handling with expertise and impartiality of any scope of disagreement. The investment made in training and accrediting mediators would help in achieving public confidence in the process.
Another growing concern is that the mediation agreements be respected and followed. Although the court-annexed mediation indeed provides a clear route to amicable settlement, the agreements reached need to be legally binding and enforceable so they carry the same weight as court judgments. In this respect, the judiciary has to work on strengthening the legal framework supporting mediation and provide express guidelines regarding the enforceability of mediated agreements.
In a nutshell, court-annexed mediation in Kenya comes with a lot of hope for an overwhelmed, inefficient, and tardy judicial system. It has the capacity to assist in bridging the time factors, the collaborative nature, and the cultural linkages with dispute resolution and can significantly contribute to the reduction of the backlog of cases and claw back public confidence in the justice system. With more Kenyans embracing this new way of doing things, court-annexed mediation could hold the future to a more efficient, fair, and accessible legal landscape where justice is served and served promptly.
