Mediation is voluntary, so no one can be forced to settle. Parties sometimes hold back for fear that a failed mediation wastes money or hands the other side ammunition. Kenyan practice is built to prevent both outcomes, and knowing what happens after an unsuccessful session makes it easier to engage openly while it is running.
What happens if mediation fails?
If no agreement is reached, the process simply ends. In private mediation the parties return to whatever they were doing before: negotiation, arbitration under the Arbitration Act 1995, or litigation. In court-annexed mediation the mediator notifies the court and the case resumes on the litigation track as if the referral had not taken place.
Can what was said in mediation be used against me later?
Mediation is confidential and conducted on a without-prejudice basis. Offers made, admissions made, and positions taken during the sessions are not admissible as evidence if the dispute later proceeds to trial, subject to limited exceptions where the law requires disclosure. The confidentiality of the process is protected by the agreement to mediate the parties sign and by the practice directions governing court-annexed mediation.
Does a failed mediation count against a party in court?
Courts encourage parties to attempt settlement, and an unreasonable refusal to take part in mediation may be taken into account when the court deals with costs. A party who attends in good faith but does not settle loses nothing on that account.
Nor is a failed mediation usually wasted. The parties leave with a clearer view of the strengths and weaknesses of each case, the issues in dispute are narrower, and the groundwork for a later settlement has often been laid. Some disputes settle on the courtroom steps precisely because mediation did its work first.
If your mediation has stalled, it is worth reviewing strategy before litigation deepens. Our arbitration and ADR lawyers in Nairobi advise on the full range of options, from renewed mediation to arbitration; see our practice areas.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation with a certified mediator at our Westlands, Nairobi office.