Milestones For Adr In Kenya: The Mediation Bill (2020)

  • Josephine Wairimu And Erastus Njaga
  • 19 Jul, 2020
Milestones For Adr In Kenya: The Mediation Bill (2020)

The Mediation Bill 2020, which is dated 15th June 2020 and which was sponsored by the Leader of Majority, and underwent its 1st reading on 30th June 2020, is a welcomed move to the realm of ADR in Kenya. The Bill’s purposes are; to promote the settlement of all civil disputes through mediation, to set out the guiding principles for mediation, to establish a Mediation Committee, to provide for the registration and accreditation of Mediators, to provide for the recognition and registration of mediation settlement and other connected purposes.  The Bill will certainly promote access to justice in line with existing laws and Constitutional principles. The Bill defines mediation as a facilitative and confidential structured process in which parties voluntarily seek to reach an amicable settlement by themselves with the assistance of an independent third party called a mediator. Other key definitions expound on the process of mediation and the modalities surrounding the process of the mediation as well as the mediation agreement, which is a contract clause or a separate agreement entered by parties agreeing to submit to mediation as the mode of resolving their disputes when they arise. If enacted, the Bill will amend the Civil Procedure Act and the Nairobi Centre for International Arbitration Act, 2013. The salient provisions of the Bill are summarised below.

Guiding Principles of mediation

Section 5 of the Bill provides for the guiding principles of mediation which encompass the voluntary and confidential nature of the process, the competency and impartiality of the mediator as well as the regard to the duration of time taken, which is similar to statutes governing ADR (Arbitration Act, Civil Procedure Act, Nairobi Center for International Arbitration, Constitution of Kenya). Furthermore, a mediator is not supposed to provide parties with legal advice, which further promotes the mediator's impartiality.  Also, as a guiding principle, parties and the mediator are compelled to complete the mediation process within the shortest time possible, taking into account the nature of the dispute.

The introduction of a party's right to resolve a dispute and to be informed of this right is significant as it seeks to educate the parties on the nature of different ADR processes and what they entail.

Establishment of a Mediation Committee

The Bill introduces a mediation committee consisting of 9 members nominated by different persons and bodies such as the Chief Justice, the Attorney General, the LSK, FIDA, Institute of Public Secretaries, COTU, and others. The members will be appointed by the Attorney General through a gazette notice and will serve for a renewable term of three years. The Mediation Committee will be responsible for regulating creating the appropriate structures to promote mediation as a mechanism of resolving civil disputes. This would consist of processes such as providing facilities, vetting, and registration of mediators, advising the Government, advising on the training of mediators, and setting the standards of learning, competence, and conduct to provide mediation.  The Attorney General is empowered to appoint the Registrar and other staff for the effective discharge of the Mediation Committee's duties. The Registrar is responsible for the day-to-day running of the Committee, keeping a mediation registry, enforcing the decisions of the Committee, among other responsibilities.  

Accreditation and Registration of Mediators

Any person who wishes to practice as a mediator is required to apply to the Committee. Further, if one wants to practice as a mediator in court, annexed mediation processes is also required to apply for accreditation. If such an application is rejected, the Committee is required to provide reasons. The applicant may appeal to the High Court against this decision. The Committee is mandated to keep a register of the registered and accredited mediators.  Furthermore, the Committee is required to publish a code of conduct for mediators. A mediator's registration can be revoked or suspended if they fail to comply with the terms and conditions for registration, have been adjudged bankrupt, or have been found guilty for the breach of code of conduct. An aggrieved mediator following the revocation or suspension can appeal to the High Court.

Mediation Process

Initiation of the Process: A mediation process may be initiated voluntarily (whether stated in an agreement or not) or after referral by a Court. The process begins when a court refers this dispute or where a party submits an invitation to mediate to another. This invitation is deemed to be rejected after the lapse of 14 days or within a specified period. The mediator must make the appropriate disclosures affecting the impartiality or conduct of the mediation process.

Revocation of appointment and Resignation: This may happen where the mediator fails to commence the mediation process or does not conduct the process in accordance with the rules;  he or she does not meet the requirements, qualifications, knowledge, or experience provided for by the Committee. A mediator upon resigning will provide the parties with a progress report on the status of the mediation.

Mediation Agreement: This will specify provisions regarding the appointment of the mediator, costs she and other relevant details (i.e., time, venue). However, the Bill in Section 42 envisions that fees and expenses of the mediation, any administrative assistance, or the costs of calling an expert are to be shared equally by the parties unless otherwise agreed upon.

Referral of a dispute to Mediation, Recognition, and Enforcement of a Settlement Agreement

Upon enactment of this Bill, Advocates will now be required to advise parties of considering mediation, and at the time of filing a case, produce a mediation certificate to that effect. In referring a dispute to mediation, the court will consider whether mediation will resolve the dispute partially or entirely. As such, this will reduce the caseload at the Courts and further bolstering ADR as a means of dispute resolution.  This referral acts as a stay of proceedings (i.e., suspending court proceedings temporarily pending the outcome of the mediation).

It is important to note that as per the Bill a dispute will not be referred where a mediation agreement is void, previous mediation attempts have failed, substantial public interest issues are involved, a binding judicial precedent is required, costs are likely to be disproportionately high, a party is likely to be prejudiced or if there is a likelihood of a delay. The Bill also empowers parties to apply to the High Court for interim measures of protection (e.g., injunctions) or challenge jurisdiction, appointment, referral of a dispute, or the Settlement Agreement.

Where a referral to mediation leads to the settlement of a dispute or part of the dispute, the settlement shall be drawn and filed in court, recorded by the court as a judgment of the court and enforced by the court as its judgment. However, if a referral does not yield any benefits, the court shall proceed from the point where a mediation referral was made.  The Settlement Agreement shall be recognized as binding and upon application by a party through writing may be enforced or challenged where a party can prove incapacitation (of the opposing party), the invalidity of the Settlement Agreement due to fraud, bribery, corruption or undue influence, where this Settlement Agreement deals with matters outside the scope of the mediation and irregularities in the appointment of a mediator or where the making of the settlement agreement was induced or affected by fraud, bribery, corruption or undue influence. 

Suspension of Limitation of Actions Act

Parties may agree to suspend the running of the Limitations of Actions period from the date of commencement to the end of the mediation process. However, this does not give parties the right to mediate time-barred disputes. This means that if an action based on contract is at 5 years and 9 months, parties can agree to suspend the running of time to pursue mediation. Still, they cannot purport to mediate an action in which 6 years have already lapsed.  The same would apply to actions to recover rent, whose limitation of action is 6 years. The importance of stopping the running of time is probably to give parties time to pursue justice, even when the mediation process has not yielded the desired results.  A party that has referred an action to mediation almost before the lapse of time would be disadvantaged and denied justice if their attempt to pursue a court process was denied for the lapse of actionable time. 

Creation of Offences

The penalties imposed by the Bill serve the purpose of punishing the offender but also seek to regulate the practice of mediation and ensure that justice is delivered comprehensively. A mediator commits an offense where he or she conducts mediations without being accredited, is in breach of a code of conduct, does not make disclosures, is not impartial, and does not act confidentially. Where any of the above is proven, the mediator shall be liable to a fine not exceeding two million shillings or to imprisonment for a term not exceeding two years or to both.

Conclusion

The Mediation Bill, 2020, is certainly a welcomed thought in the realm of dispute resolution. The acknowledgment of mediation as a mechanism of settling civil disputes will facilitate easier access to justice in line with Article 48 of the Constitution will significantly reduce the case backlogs in our courts, and quite critical it will safeguard relationships of the conflicting parties saves their time and guarantees the privacy and confidentiality of the mediating parties. Let us hope that our legislators will pass this Bill.