Mediation unlocks Sh7b tied in 1,879 family, civil disputes

Chief Justice David Maraga. [File, Standard]

The Judiciary has freed Sh7.2 billion that had been locked up for years in litigation.

The money tied up in family and civil disputes was freed under the new Court Annexed Mediation (CAM) programme where disputes are resolved confidentially and relationships between the parties restored.

Chief Justice David Maraga said 1,879 cases had already been processed at the end of the period, unlocking the billions of shillings.

As Alternative Dispute Resolution (ADR) process, a number of cases that have been pending in the two court divisions were screened during the last financial year and 2,905 referred to the programme.

Maraga said the CMA programme currently covers courts in 12 counties and has contributed to the Judiciary’s speed of justice delivery. Some of the counties are Mombasa, Kisumu, Eldoret, Nakuru, Kakamega, Kisii, Machakos, Embu, Garissa and Nyeri.

“These early and positive results demonstrate the great potential of that programme to assist in addressing the perennial challenge of the rising workload in our courts and facilitate the release of funds tied in litigation to the economy,” the CJ said.

Article 159(2)(c) provides that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted.

Parties whose cases qualified for the programme were notified by the Mediation Deputy Registrar (MDR) seven days after the screening and a group of three Judiciary accredited mediators nominated to handle each matter.

It is out of the three names that parties in a case picked a suitable mediator to hear and determine their case. 

Did not agree

Parties in some of the cases did not prefer any of the three proposed mediators and were allowed to select from the register of mediators that is maintained by the Mediation Accreditation Committee.

Some of the parties in the cases attended the sessions in person while others were represented by lawyers in the process where all communication was kept confidential.

The Sunday Standard learnt that the longest process in any of the 1,879 cases took a maximum of 60 days from the date it was referred for mediation, while some were granted an extension of only 10 days.

For some of the 2,905 cases referred to the programme, parties did not agree on the outcome and the registrar was forced to take them back to the courts.

Agreements made in the cases were adopted and enforced as judgments or orders of the court but left those who wanted to change their minds on the deals they signed, stuck.

This is because the law does not allow them to appeal against a judgment or order arising from a settlement they arrived at with their opponents.

As at March last year, there were 499 accredited mediators up from less than 100 in 2017.

In a gazette notice published May 30, 2017 on CAM’s rules of practice, the CJ said cases filed in the commercial and family divisions of the court shall be screened at any appropriate stage as the court may determine.

“All communication during mediation including the mediator’s notes shall be deemed to be confidential and shall not be admissible in evidence in any current or subsequent litigation or proceedings,” the CJ stated in the notice.

However, information relating to child abuse, child neglect, defilement, domestic violence or related criminal or illegal purposes may not be treated as confidential.

Tell their experiences

The rules also protect the mediator and parties from being summoned to testify or produce notes relating to the mediation in any proceedings before any court.

“A mediator shall enjoy the same protection and immunity as that granted to judicial officers and judges,” reads part of the rules.

On who is to pay mediators during the sessions, the rules state that the Judiciary shall facilitate the mediation sessions.

In Uganda, CAM is mandatory for all civil matters and allows parties to tell their experiences in a free and less intimidating atmosphere.

CAM is also practiced in Lesotho where the process is meant to take two days to a maximum of 30 days and has saved litigants the high cost of seeking justice. It was introduced in 2011.