The following attributes have made mediation an alternative dispute resolution mechanism of choice for many people. This has consistently made mediation attain a beneficial effect on resolving disputes in Kenya.
The Voluntariness Attribute
The perspective of voluntariness in court-annexed mediation implies that disputants agree to reach a settlement that is a win-win for both of them.
The Party Autonomy Attribute
What makes Court-Annexed Mediation unique from the litigation process is the fact that the mediator is an impartial and neutral third party with no power to determine outcomes for the disputants. The mediator plays a lead role in guiding and facilitating the parties to settle. In essence, mediation is a consensual conflict resolution mechanism in which a non-authorized third party tries, by consent, to get the opposing parties to terminate their dispute. As such, party autonomy exists because parties in a dispute are at liberty to take part in the process of mediation where the resulting outcome is not based on coercion or pressure.
Court annexed mediation provides a chance for parties to seek justice by making sure that that they possess the process structure which puts them in a position to drive the process of reaching a negotiated settlement.
The process of mediation is most times confused with litigation and disputants tend to find the ordering and commanding nature of the court as limiting to their autonomy as compared to the autonomy enjoyed in the mediation process.
The Flexibility Attribute
Court annexed mediation provides less strict rules and a flexible platform that provides a convenient environment for disputants to resolve a dispute. This environment allows parties to positively and objectively approach the mediation process and essentially resolve it faster as compared to litigation. There are minimal rules to abide by while in the process as opposed to the structured nature of litigation.
The Legally Binding Attribute
An agreement/settlement reached in a court-annexed mediation process is registered with the courts upon which it becomes adopted as an order or judgment of the court and as such legally binding on the parties. Such an agreement reached by consent cannot be easily set aside . In Flora N. Wasike v Destimo 21[1988], JA opined that it's established law, that a judgment by consent/order bears attributes of a contract and the only way to set it aside for the same reasons for setting aside a normal contract or prove unfulfilled conditions.
In KCB Ltd v Specialized E co. Ltd23 (1982)KlR 485, 21 [1988] eKLR 22 [1970] 3 ALL ER 671, 23 [1982] KlR 485,
The court ruled that unless it is proved that a consent order was attained by fraud, or collusion, or by any agreement contrary to the policy of the Court, or where the consent was given without sufficient material facts, or in representation or ignorance of such facts in general for a reason which would enable the court to set aside an agreement, such an order binds all parties to the proceedings and cannot be put to one side or changed.
The moment flexibility is lost in the court-annexed mediation process, the parties are likely to lose interest in incentivizing as opposed to where there is no structure or strict procedures to follow hence making it less effective than in mediation. More so Court-Annexed Mediation has provided a platform for litigants to avoid the strict rules and procedures to be abided by, in the usual litigation process. Where mediation fails, the case is referred back to litigation.
Inthe case of George ngure Kariuki vs Charles osoro makono and 2 others. It was held that: The 2nd defendant provided reasons why the court should not strike his defense for failing to show up for the mediation process. The case was referred for mediation. The mediation failed to proceed because of the absence of the 2nd defendant. Consequently, the mediation file was referred back to the court. On being referred to the court, the court ordered the second defendant to provide reasons why it should not strike out his pleadings for not attending the mediation process. He was able to show that during the relevant period when the mediation was scheduled, he was unwell and had traveled to India and the USA for treatment. Indeed, even at the time scheduled for him to show cause, he was out of the country still receiving treatment. It is clear that to strike out pleading would divest the 2nd rights to be heard. I was able to discern from the parties’ case summary before the mediator that both the plaintiff and the second defendant had a misunderstanding about the affairs of Concord Insurance. It is therefore essential, that they both be afforded a hearing in the case before the court. . .
The affordability attribute
Mediation is less expensive compared to solving dispute through the court process. For instance if a court matter has been screened for court annexed mediation,the parties will bear no cost for the mediation process. Private mediations are also much less costly as compared to litigation.