The Civil Procedure Act Cap 21 Laws of Kenya,defines Court Annexed Mediation as a non-confrontational process of resolving disputes with the help of an independent and impartial mediator who reassures and simplifies the resolution process for the parties without making decisions on their behalf. This procedure gives mediation a legal basis given the fact that the court provides an umbrella under which Court-Annexed Mediation is conducted.
In her article, "Mediation in the Courts' Embrace: Introduction of Court-Annexed Mediation into the Justice System in Kenya" F.K Shako defines Court-Annexed Mediation as an alternative mechanism of resolving disputes by which cases presented to the court for determination are referred for possible resolution by mediation.
Dr. Kariuki Muigua in his paper, "Court Sanctioned Mediation in Kenya-An Appraisal," further points out that court-sanctioned mediation takes two forms: court-mandated and court-sanctioned mediation.
Mediation mandated by the court is whereby the mediation process is required by the court, as envisioned in the Kenyan legal system. It happens when the court allows parties to have their dispute resolved by an independent and impartial mediator accredited by the judiciary. This happens after the parties have lodged a dispute in court. The settlement reached by the parties is then filed and adopted by the court as an order of the court or a court judgment. Should parties fail to settle within the stipulated time, the matter would be referred back to court to proceed with the litigation process. On the other hand, mediation sanctioned by the court stems from an instance where parties during the litigation process can request the court to allow them to try an out-of court settlement by filing a consent in court. The court will then give a mention date in a couple of weeks whereby parties will return to court and update it on whether they settled the matter or could not reach a settlement. If the matter was settled, then the case will be closed after filing a consent judgment. However, where a settlement failed to be reached, the matter will revert to court for litigation. This type of mediation can be ordered by a judicial officer.
Sarah Ater-Strides in her article, ' court-annexed mediation in Kenya states that, Article 48 of the Constitution of Kenya (2010) as one of the ways through which access to justice is promoted. The Court Annexed Mediation (CAM) was first implemented in Kenya in April 2016 at the Commercial and Family Divisions of the Court.Since the commencement of the CAM, significant progress has been made. By July 2017, CAM was reported to have unlocked more than $14 million (approximately Kshs 1.4 billion) which was held up in disputes.
That represented a settlement rate of 53.8 percent in the Commercial and 55.7% in the Family Divisions. By July 2018, $24 million (Ksh 2.4 billion) was reported to have been unlocked rising to $40 million (Ksh 4 billion) by February 2019. The number of Judiciary Accredited Mediators had also risen to 499 as at March 2019 in comparison to less than one hundred accredited mediators in July 2017.By 2018, the use of mediation had extended to the Milimani Children’s Court, the Milimani Chief Magistrate’s Commercial Court, the Environment and Land Court, the Employment and Labour Relations Court, as well as the Civil Division of the High Court. Furthermore, the CAM has also been launched in court stations away from Nairobi, the capital city. These include court stations in Eldoret, Garissa, Kakamega, Kisii, Kisumu, Machakos, Mombasa, Nakuru and Nyeri. As the CAM continues to expand in the country, it faces some challenges. For example, some stations have inadequate space making it necessary for the mediation registry to share office space with other departments. For the same reasons, mediators sometimes have to wait in turn to attend to parties in an allocated mediation room.
The judiciary is however planning to construct additional rooms at some stations and mediators are also allowed to conduct sessions away from the court premises.In some instances, it has been difficult for mediators to contact disputing parties directly or to gain cooperation of the parties’ advocates. To address this, advocates and their parties are now required to indicate their full contact details as they file their matters. Additionally, some court stations carry out sensitisation sessions for advocates through meetings and for the general public through awareness activities organised by Court User Committees.
Targeted programmes such as the Mediation Settlement Week and the Children’s Service Weeks have also been instrumental in creating greater awareness on the role and place of mediation within the justice system.As the need for mediators continues to rise, together with the number of mediators; the questions of quality and standards arise. Judiciary Accredited Mediators are required to meet a minimum of 40 hours in training, have some mediation experience and more recently are expected to be mentored before they can be assigned mediation matters on their own. In addition, practice directions providing guidance on CAM were gazetted in 2018 and printed copies of a detailed mediation manual, code of ethics and frequently asked questions are freely available for both mediators and parties.