The suit has been filed, the pleadings are settling, and the court directs the parties to mediation. Some litigants read the referral as delay; experienced ones recognise it as the route through which a considerable share of civil matters now conclude. Knowing what the process involves helps parties use the opportunity well rather than treat it as an interruption.
How are cases referred to mediation?
Court-annexed mediation operates as part of the civil justice system under the Civil Procedure Act and the rules made under it, with the Judiciary’s mediation programme administering the referrals, as described on the Judiciary website. Matters considered suitable, including commercial disputes where the parties expect to remain in a relationship, are screened and referred, and the mediation runs alongside the court file rather than instead of it.
What happens in the mediation sessions?
A mediator drawn from the Judiciary’s accredited panel manages discussions in which the parties, with their advocates, explore settlement. The mediator facilitates; the mediator does not decide. Sessions are confidential, and statements made in them cannot be deployed later in the suit, which allows positions to be tested candidly. Where the parties settle, the terms are recorded and adopted, and the resulting consent takes effect as an order of the court, enforceable in the ordinary way.
What if mediation does not resolve the matter?
No party is required to settle, and a matter that does not resolve returns to the courtroom for trial in the ordinary course. Even then the exercise is rarely wasted: the issues are narrowed, documents are exchanged and each side leaves with a better understanding of the other’s case. The statutory framework can be consulted through Kenya Law for parties who want the detail behind the referral.
The firm represents parties in court-annexed mediation and in private settlement processes through its ADR practice; its practice areas describe the full range of dispute resolution services available to commercial clients. Parties who approach the sessions with instructions settled and decision-makers present extract the most value from the opportunity.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.