Impact of COVID-19 on dispute resolution: Promoting use online mediation services
Mediation is defined as a voluntary dispute resolution method that involves an independent third party who helps the disputing parties to resolve their disputes and arrive at a mutual agreement. The disputants (parties to the dispute) decide on terms of the engagement unlike in a court setting where the procedure followed is based on relevant Acts of Parliament or court procedures. The mediator’s role is to manage the process and assist the parties in the negotiations to come to their mutual agreement. It is no wonder that about 90% of the mediation agreements are adhered to without any challenges.
In Kenya, Article 159 of the 2020 Constitution mandates the Judiciary to promote alternative dispute resolution (ADR) methods in the administration of justice as long as ADR does not contravene the Bill of Rights. This is further given effect by the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which requires that civil disputes are resolved in a just, expeditious and less costly manner. In line with its transformation framework, the Judiciary embraced alternative dispute resolution to ensure justice is more accessible. The main alternative dispute resolution (ADR) methods available in Kenya are mediation, arbitration, and traditional justice systems (SOJAR report 2018/2019).
Reducing case backlog
In April 2016, the Judiciary in Kenya launched the Court Annexed Mediation (CAM) mainly to reduce the historic case backlog. CAM espouses a mediation process that is conducted under the directive of the High Court of Kenya for matters that are filed at the Family and Commercial Division. The 2019 State of Judiciary report in Kenya indicated that through the CAM process, approximately Kenya shillings seven billion which had been tied to ongoing disputes was released to the economy. This achievement is a great demonstration of the need to give even more focus to the use of mediation.
The process of CAM involves, case screening procedure whereby a Judicial Officer will analyze a case filed in and determine (based on certain criteria) whether the case should be referred to CAM or not. Once a case is referred to mediation, the court provides three mediators from whom both parties select one with whom they are comfortable. The mediator listens to the parties’ versions of their disputes and subsequently guides them in reaching a mutually acceptable agreement. The agreement reached, upon filling with the judiciary registry is considered legally binding by the court. While the CAM mediation process is mandatory for the selected cases, the parties cannot be forced to reach an agreement. According to the CAM guidelines, the whole mediation process is expected to be concluded within ninety (90) days. Those cases that are not concluded in the mediation process revert back to the court for determination. The 2019 state of the Judiciary report indicated that 65% of all the cases referred to CAM for mediation were concluded within three months.
Cost-effective and confidential
Beyond the speedy resolution of disputes, mediation has several other advantages. From a decision-making perspective, a good number of disputes are not about facts but about injured emotions. Mediation allows aggrieved parties to release emotions and to feel heard in the language that they understand best. Mediation is also more cost-effective, private and confidential in that all information exchanged during a mediation is confidential and not admissible in court. For commercial and family disputes, a major advantage of mediation is the possibility to maintain a good relationship with the other parties after the mediation agreement.
Dispute and Resolution Centre at Strathmore
Beyond the Court Annexed Mediation (CAM) process, there now exist other organizations that provide mediation services using trained and accredited mediators. Strathmore Dispute and Resolution Centre (SDRC) at Strathmore University is one such organization. In 2007, SDRC spearheaded a pilot project with several commercial banks to promote the use of mediation in resolving commercial disputes. Similar to the CAM process, the SDRC pilot project was successful with over 50% of the referred cases being resolved within 60 days. Subsequently, the SDRC panel of mediators, some of whom are also in CAM, have resolved both family and commercial cases.
With the onset of the COVID-19 pandemic, the Kenya judiciary has had to cut down on public court hearings which means that the case backlog can only get worse. In addition, one of non-health related outcomes of the COVID-19 is an increase in the number of disputes arising from unmet commercial contracts e.g. with business partners and employees. This spike in commercial disputes is already being reported in China, and in consequence, the Chinese government has moved fast to push the adoption of online mediation to resolve these disputes. The Kenyan judiciary may want to learn from the Chinese experience and importantly embrace the use of online mediation. Luckily, the technology to support online mediation already exists, but that’s for another day.
This article was written by Dr. Edward Mungai, Director, Strathmore Dispute Resolution Centre.
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