Why mediation is the best way for many to seek and find justice. The reality in Kenya.
Anyone looking at Kenya’s social dynamics today will no doubt recognise how, driven by a growing appreciation of their rights, wananchi are becoming increasingly litigant.
They are coming to court virtually every day to challenge government plans and decisions; to object to decisions made by their political, labour, religious and other leaders; and they are taking one another to court endlessly over all manner of disagreements.
PRICE OF JUSTICE
From family to commercial and other disputes, our courts are busy arbitrating matters that the people hold very dear. Kenya is a country of many firsts, and maybe one of these days, we will be declared the most litigant nation on earth. There can never be a price too high to pay for the pursuit of justice.
However, as Chief Justice David Maraga implements his ambitious Judiciary transformation agenda, which focuses on service to the people, we have no option but to expand the means by which justice is delivered.
This is why court-annexed mediation has become such an important component of our judicial process today.
Mediation is just what the word means – that, instead of parties combating in courtrooms for ages, they sit down under the guidance of an accredited mediator and find peace. Because the process is court-annexed, their decision is formally registered and gets the force of a court ruling.
The Judiciary has so far launched the mediation programme in the Family, and the Commercial and Tax divisions, and the results are beginning to excite our judicial system. Soon, it will extend the service to the Environment and Land Court, which is replete with litigation.
In the commercial courts, for example, by concluding just one batch of 25 cases recently, Sh500 million that had been locked up in litigation was released back to the economy.
The total value of Commercial and Tax division matters in mediation stands at Sh4.4 billion. Finding quick resolution in disputes in not just a courtroom convenience. It is at the core of our social and economic life. It makes it easy to do business, and gives families caught up in disputes a chance to quickly go back to their normal lives. Indeed, a judicial system that incorporates mediation gives a significant boost to the country’s Ease of Doing Business score.
Whereas it takes an average of 50 months to resolve cases in the Commercial and Tax Division and 43 months in the Family Division, it takes an average of 69 days through mediation. In one signature case, a dispute that had been in court for 15 years was settled after just 30 days of mediation. What is more, the former litigants walked out holding hands and laughing – another important trait in mediated resolution of disputes.
The parties get a chance to repair their broken relationships because the whole essence is guiding parties to make their own decisions; to find a position that suits them best.
In the process, a good environment for reconciliation is nurtured. Mediation can save the parties about 58 per cent of costs compared to litigation. This is without compromising earnings for lawyers because those accredited as mediators are paid by the Judiciary, and the quick turn-around time for cases gives them the chance to take on more briefs, boosting the volume of invoices. When enough Kenyans get to know how useful mediation is, they will see it as the preferred alternative dispute resolution mechanism.
I have been part of a team that has been sensitising the stakeholders – lawyers, accountants, religious leaders and the public – about Court Annexed Mediation and the reception we get is very encouraging.
So, next time you are considering going to court over that business deal that fell through, or that spat that has been ripping the family apart, remember that you have other viable routes to justice.
By Fred Ochieng’ – Originally published by Daily Nation on June 12, 2017