Arbitration could unlock billions into the economy

Tuesday December 19 2017

Arbitration saves both time and money for those involved and holds the potential to inject billions into the economy. FILE PHOTO | NMG

Arbitration saves both time and money for those involved and holds the potential to inject billions into the economy. FILE PHOTO | NMG 

By JAMES KARIUKI
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Chief Justice David Maraga’s aspiration to entrench mediation as a conflict resolution mechanism, has seen 108 civil suits concluded releasing property and cash worth Sh1.4 billion back to the economy.

The cases from the commercial and family divisions of the court were heard by mediators where parties directly engaged instead of the court-umpired system where those involved become bitter foes after the suit is concluded.

While it took an average of  66 days to hear the 68 marital suits worth Sh340 million and 40 commercial disputes valued at Sh1 billion, it takes courts a minimum of two years to complete a civil suit making it time consuming  and a costly avenue for parties involved.

Mr Maraga said he plans to use his tenure to entrench mediation as a legally recognised process that is cost-effective and a homegrown means to solve disputes where parties agree on a give-and-take arrangement against the justice corridors where those involved pay lawyers to ‘square’ out the matter.

“My blueprint, Sustaining Judiciary Transformation (SJT) emphasises adoption of CAMP as integral to the next phase of the transformation. Through mediation Sh1.4 billion earlier locked up in litigation has been freed.

“Mediation Settlement Week is one of many avenues the Judiciary will employ to publicise the mediation process and change the perception that litigation is the only effective means of resolving disputes,” he said.

A status report covering the project’s infant stages between July and October 2017 shows that 1,600 commercial and family disputes were screened with 542 suits valued at Sh17.4 billion referred for mediation.

Dispute resolution

Commercial rows account for Sh14.7 billion while the family division is handling suits with Sh2.3 billion at stake.

“The pilot phase has ended and CAMP is now a permanent dispute resolution mechanism, just like litigation. Over-reliance on litigation as the exclusive means of conflict resolution has, over time, led to a serious backlog of cases in our courts, hampering the effective fulfilment of the Judiciary’s mandate,” said Mr Maraga.

According to a report compiled on the status of pending cases in Nairobi as at June 2017, the commercial division had 5,774 suits, chief magistrates commercial court (34,846), Civil division (12,187), Environment and Lands court (26,438), family division (18,922) while the employment and labour relations court had 10,875 pending suits as at December 2016.

One of the mediators, All Saints Cathedral cleric Reverend Geoffrey Njenga said the process results in sustainable peace as well as mending broken relationships.

“Most litigants act out of emotions and a mediator must cool down emotions to create an atmosphere where parties can focus and work towards a win-win resolution.

“Each party is given time to declare their interest uninterrupted and we jointly chart a middle line agreeable to both parties. We usually register full and partial agreement as well as failed mediation where a report is sent back to court in a record 60 days,” he said.

Reverend Njenga, who is also a trained economist, has to date mediated 25 cases in the Family and Commercial Divisions since CAMP was introduced.

“On average, a case takes about three sessions to resolve. These timelines cannot be compared to the court process which is long, tedious and often acrimonious,” he says.

An Alternative Dispute Resolution Committee has since been formed and is laying out mechanism to rollout CAMP across Kenya.

Mr Maraga said the taskforce will also run mediation sensitisation campaigns across Kenya to help demystify the process as a tool for settling rows.

The planed national rollout also involves private law practitioners, mediators drawn from various training backgrounds as well as courts.

The ADR taskforce will help individual courts set up civil suits screening committees that will determine cases that should proceed into full hearing before courts and those suitable for mediation.

Under Mr Maraga’s blueprint, mediation is expected to take centre stage with individual courts encouraged to refer litigants to mediation thereby helping ease pressure from the courts where some cases have dragged on for decades impoverishing litigants.