Judiciary proposes mandatory mediation before court option

The Judiciary is in talks with other stakeholders over the possible introduction of mediation as a mandatory primary step in handling civil disputes before they are filed in court.

Presiding Judge at the Commercial and Admiralty Division Justice Fred Ochieng said talks were ongoing with a view to speeding up the release of billions of shillings held in litigation that is derailing development, thereby hurting the economy.

Civil cases usually involve private rows between persons or organisations while criminal cases involve an action that is considered to be harmful to society as a whole.

A civil case begins when a person or entity called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff. Both the plaintiff and the defendant are also referred to as parties or litigants.

“The sooner we resolve disputes the better for Kenya since local and foreign investors will have faith in our legal system. No one wants their money held or projects derailed as this is a costly affair to both litigants,” said judge Ochieng.

In an exclusive interview with the Sunday Nation, Justice Ochieng, who co-chaired the Alternative Disputes Resolution Taskforce, said litigants will be required to file proof as to having sought mediation or any other form of alternative disputes resolution.

“The future will see warring factions required to disclose any efforts made to seek mediation before coming to court and where a party hardly sought such services or is found to have lied, then the suit will be struck out. As of now, we are building capacity amongst the magistracy as well as lawyers who are an integral part in advising clients on the need to embrace mediation,” he said.

Justice Ochieng, who started practicing law in 1983 when he joined Kaplan & Stratton Law firm specialising in commercial litigation until he was appointed a judge in 2003, said mediation has a central role in enhancing business and family ties.

“Which bank wants to be seen as fond of attaching their client’s properties. Which client will go to such a bank? We are seeing a change of heart where banks now engage their clients in case of a default and mostly end up in court if a client defaults on an agreed second proposal for repayment,” he said.

Speaking on the progress made on last December’s roll-out of a phased court-mandated mediation process within Nairobi courts, Justice Ochieng said a Mediation Accreditation Committee had since been formed to vet would-be mediators before an eventual national roll-out is launched starting with Mombasa, Nakuru, Kisumu and Eldoret.

READ: Kenya explores mediation to help unlock cash held in land wrangles

Justice Ochieng said they had agreed with other stakeholders that requirements that mediators must be degree holders in any discipline would be done away with to enable known negotiators have a chance to resolve disputes.

In his experience as a judge and lawyer, he said, mediation appeared to be the best cure to bitter relations as both parties get an opportunity to offer solutions and come to an agreement instead of the court-umpired regime where one party won and the other lost.

“Mediation is painless. It has room for building broken relationships as parties come to agreement from a point of understanding. In court we look at evidence adduced without regard to why one failed to pay a debt and issue a decree. But in mediation, if a party says business was very bad last year, the other party can allow for more time for business to pick up,” he said.

“Instead of engaging the other party in a dispute to reschedule payments at no cost, most Kenyans adore the adage “tukutane kortini” (let’s meet in court). You will manage to buy time via stay of execution orders but the debt will pile up, court fees up and lawyers’ fees up. In case you lose the suit, your property will be seized as you painfully and helplessly watch. This is a bitter end that brings in a permanent crack between former business partners,” he said.

Litigants, he said, could save their names from being listed with Credit Reference Bureau (CRB) as flight risks by engaging their banks with tenable proposals for rescheduling the payments.

Among the most successful civil suits handled via mediation is last year’s doctors-government stalemate on salaries that was presided over by Mr John Ohaga.