In Kenya, the reason most of us rush to forward our disputes to court is because of the finality we perceive it brings to these disputes. That is probably why cops like the phrase “wewe, nitakupeleka mbele”, (I will take you to court) when an offender turns out to be a handful. After all, we say the best defense is a good offence, right? Wrong. A defense mechanism should not be offensive if you are seeking to preserve an existing relationship, be it professional or personal, and if you want to save on time, money and numerous other resources. What if I told you, you can have a non-offensive resolution that has the same finality and force of law as what a judge or magistrate would say had you filed your matter to court?
Mediation, which is a non-offensive mechanism, is not always the first form of resolution that comes to mind. Its outcome is however binding, just like a court order or a legal contract, literally speaking. In fact, there are two approaches to the binding nature of mediation settlements and each is similar to a court order or a contract.
The first approach is in relation to a private mediation, where the mediator is a qualified mediator (all SDRC Mediators are qualified) and the settlement agreement is registered with the court. The Civil Procedure Act, which is a piece of legislation in Kenya, provides that such agreements which are entered into with the assistance of qualified mediators and should be in writing may be registered and enforced by the Court. This therefore means that registering your mediation settlement in court where it is in writing and the mediator is qualified, guarantees you its enforcement as though it is a court order. This applies in cases where either the parties to the dispute voluntarily seek to go to mediation or they are ordered by a judge or magistrate to settle their case in mediation.
The second approach is enforcing it as an ordinary contract. The court opined in the case of Kenya Plantation and Agricultural Workers Union versus Maji Mazuri Flowers Limited that the principal methods of enforcing a settlement agreement reached at mediation is as a contract. This means that the settlement agreement, upon consent by the parties in the dispute is to be enforced as a legally recognized agreement. The only challenge with this approach is that it leaves the parties right where they started should one of the parties fail to hold is end of the bargain. As a result the best way to prevent this is by registering the mediation settlement with the court in order for it to be enforced as a judgment of the court.
Registering a mediation settlement with the court does not require you to file a new suit in court which means you do not have to incur the costs of filing charged by the courts save for some minimal charges on registration.
The best form of defense is therefore not necessarily an offensive mechanism against your adversary. Schedule your matter for mediation with us and whatever settlement you arrive at can be filed with the court or recognized as a contract by both parties. This will then make the decision both parties arrive at legally binding on both of them.