Why mediation is best way to find justice

Anyone looking at Kenya’s social dynamics today will no doubt recognize how, driven by a growing appreciation of their rights, wananchi are becoming increasingly litigant.

They are coming to court virtually every day to challenge Government plans and decisions; to object to decisions made by their political, labour, religious and other leaders, and they are taking each other to court endlessly over all manner of disagreements.

From family to commercial and other disputes, our courts are busy arbitrating matters that the people hold very dear. Kenya is a country of many firsts, and may be one of these days we will be declared the most litigant nation on earth.

There can never be a price too high to pay for the pursuit of justice. However, as Chief Justice David Magara implements his ambitious judiciary transformation agenda which focuses on service delivery to the people of Kenya, we have no option but to expand the means by which justice is delivered.

This is why court-annexed mediation has become such an important component of our judicial process today.

Mediation is just what the word means – that, instead of parties combating in courtrooms for ages, they sit down under the guidance of an accredited mediator and find peace. Because the process is court-annexed, their decision is formally registered and gets the force of a court ruling.

The Judiciary has so far launched the mediation programme in the Family as well as the Commercial and Tax divisions, and the results are already beginning to excite our judicial system. Soon, it will extend the service to the Environment and Land Court, which is particularly replete with litigation.

It is quite easy to quantify the impact of mediation at the Commercial courts where, for example, by concluding just one batch of 25 cases recently, about Sh500 million that had been locked up in litigation was released back to the economy. The total value of Commercial and Tax Division matters currently in mediation stands at about Sh4.4 billion – money that needs to quickly go back to the economy.

Finding quick resolution in disputes in not just a courtroom convenience. It is at the core of our social and economic life. It makes it easy to do business, and gives families that are caught up in disputes a chance to quickly go back to their normal lives. Indeed, a judicial system that incorporates mediation gives a significant boost to the country’s Ease of Doing Business score.

With mediation, the time for settling a dispute gets cut massively; whereas it takes an average of 50 months to resolve cases in the Commercial and Tax Division and 43 months in the Family Division, it takes an average of 69 days through mediation.

In one signature case, a dispute that had been in court for 15 years was settled the other day after just 30 days of mediation.

What is more, the former litigants walked out of the session holding hands and laughing – another important trait in mediated resolution of disputes.

The parties get a chance to repair their broken relationships because the whole essence of mediation is guiding parties to make their own decisions; to find a compromise position that suits them best. In the process, a good environment for reconciliation is nurtured.

Besides, it is estimated that mediation can save the parties about 58 per cent of costs compared to litigation. This is without compromising earnings for lawyers because those who are accredited as mediators are paid for their work by the Judiciary, and the quick turn-around time for the cases gives them the chance to take on more briefs, boosting the volume of invoices.

When enough Kenyans get to know how useful mediation is, I have no doubt many of them will see it as the preferred alternative dispute resolution mechanism that it is.

I have personally been part of a team that has been travelling the depth and breadth of Kenya sensitizing different stakeholders - lawyers, accountants, religious leaders and members of the public - about Court Annexed Mediation and the reception we always get is very encouraging.

So, next time when you are considering going to court over that business deal that fell through, or that spat that has been ripping the family apart, please remember that you have other viable routes to justice.

Justice Ochieng’ is the presiding judge of the Commercial Division and co-chair of the Alternative Dispute Resolution (ADR) operational committee.