Judiciary sets stage for alternative dispute resolution

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Since the passage of the new Constitution in Kenya in 2010, many institutions in the country have been undertaking reforms that are aimed at giving effect to the letter and spirit of the Constitution.

The Judiciary on its part is, among other things, taking deliberate steps to ensure that access to efficient, effective, expeditious and affordable justice becomes a reality to the millions of Kenyans that seek justice from the Courts every day.

The dream of employing alternative – and often less tedious and less expensive to all the parties – justice systems in resolution of disputes is set to come to fruition soon; thanks to move by the Chief Justice Dr Willy Mutunga to gazette a Committee on Alternative Justice Systems (AJS) at the beginning of March.

In a marked departure from the traditional and conventional way in which disputes in Kenyan court are resolved through litigation, the judiciary is now exploring the introduction of a court-linked mediation program.

A pilot program for this will first be initiated at the Commercial and Family divisions of the High Court at Milimani before being rolled out countrywide.

A successful court-linked mediation program will not only afford Kenyans a relatively cheap and less acrimonious forum for resolving their disputes but also help ease the backlog of cases that currently dog ours courts.

The success of such a program however depends much on a well-established and supportive legal and institutional framework.

Article 159 of the Constitution lays out the legal groundwork by requiring that the judiciary, in exercising judicial authority, be guided by among other things, alternative forms of dispute resolution including conciliation, arbitration and mediation.

A recent development that directly impacts the most on the judiciary’s quest to embrace mediation as a dispute resolution mechanism is the amendments to the Civil Procedure Act, which established the Mediation Accreditation Committee (MAC).

This Committee is established under section 59A of the Civil Procedure Act (Cap 21) Laws of Kenya. The Committee members gazetted by the Chief Justice on February 20, 2015 are drawn from the judiciary and several other stakeholders among them the Kenya Bankers Association, the Chartered Institute of Arbitrators, and the Central Organization of Trade Unions. Under section 59A (4) of the Act, MAC is mandated to:

• Determine the criteria for certification of mediators;
• Propose rules for the certification of mediators;
• Maintain a register of qualified mediators;
• Enforce such code of ethics for mediators as may be prescribed; and
• Set up appropriate training programs for mediators.

The launch of this Committee has been viewed by keen observers of Kenya’s justice system as a testament of the judiciary’s resolve to give effect to the provisions of the Constitution, particularly article 159, and as a means of facilitating and strengthening alternative dispute resolution processes both within the judiciary and the country at large.

In his keynote address at the launch of the Committee, Chief Justice Mutunga confirmed the judiciary’s commitment in providing leadership and promoting alternative dispute resolution mechanisms.

In the past 10 months, MAC has developed and validated Mediator Accreditation Standards and spearheaded the drafting and gazettement of the Mediation (Pilot Project) Rules both of which are crucial documents, which will be used in the pilot mediation program.
The Rules will apply to the court-linked mediation proceeding during the life span of the pilot program while the accreditation standards outline the standards required for one to be accredited by MAC as a mediator.

In February, MAC advertised for interested and qualified persons to apply to be accredited as mediators. The process of accreditation is ongoing and when complete, MAC will have a list of accredited mediators that will be used in the mediation pilot program. There are several qualifications that the Mediation Accreditation Standards set for one to be accredited as a mediator by MAC which include undergoing a mediation course and membership to a professional body.

Even though the Committee has targeted at least 15 to 30 mediators in order to get the pilot program running, it intends to continue accrediting mediators throughout the year with a view of creating a database of experienced mediators in diverse fields across the country.

Since the mediators who will be involved in the exercise are neither judicial officers nor subject to the code of conduct of public officers, there is need to have a check on the ethical conduct of all those involved in the process.
It will be the statutory duty of MAC to ensure that a proper ethical standard among the mediators is observed through the enforcement of a code of ethics for mediators.

(The author is Magistrate/Registrar of the Mediation Accreditation Committee – Office of the Chief Justice – Email: [email protected])

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