Court Annexed Mediation

Objective:

By the end of this lesson, you will learn how to conduct court-annexed mediation (CAM) within Kenya’s judicial framework. This knowledge will enable you to facilitate disputes referred by courts, adhering to legal processes and timelines, enhancing your ability to bridge judicial and mediation roles effectively.

Course Content:

1. Overview of Court Annexed Mediation (CAM)

CAM integrates mediation into Kenya’s judicial system, as detailed in the 40-Hour Mediation Course Handbook (Module 10, p. 131):

• Definition: “An informal and non-adversarial process where an impartial mediator encourages and facilitates resolution of a dispute between two or more parties but does not include attempts made by a Judge to settle a dispute within course of judicial proceedings related thereto” (p. 131).
• Legal Basis: Article 159(2)(c) of the 2010 Constitution mandates the Judiciary to use Alternative Dispute Resolution (ADR) mechanisms, operationalized by Section 59A of the Civil Procedure Act, which establishes the Mediation Accreditation Committee (MAC) (p. 131).
• Key Features:
  • Conducted under court supervision with a 60-day timeline, extendable by 10 days (p. 132).
  • Mediators are appointed from MAC’s accredited register (p. 132).
• Purpose: Alleviates case backlogs, promotes quicker and more efficient dispute resolution, and improves access to justice within the judicial system (p. 131).

Key Insight: CAM combines the flexibility of mediation with the authority of the court system.

Reflection Question: How might CAM’s court supervision enhance public trust in mediation?

2. Process and Roles in CAM

CAM follows a structured process with specific roles, as outlined in the handbook (Module 10, pp. 132-135):

• Process Steps:
  • Referral: The Mediation Deputy Registrar (MDR) refers a case to mediation, notifying parties within 7 days of the decision (p. 133).
  • Mediator Selection: MDR nominates three mediators from the MAC register; parties select one within 7 days, or agree on another from the register (p. 133).
  • Sessions: The mediator schedules and conducts sessions, aiming to resolve the dispute within 60 days from the referral date (p. 134).
  • Agreement or Conclusion: If resolved, the mediator drafts a settlement agreement within 10 days, filed with the court for adoption as a judgment or order; if unresolved, a non-compliance report is submitted (p. 134-135).
• Roles:
  • Mediator: Facilitates resolution, prepares notices and rules of engagement, ensures confidentiality, and drafts reports or agreements (p. 132).
  • Parties: File case summaries, attend sessions, participate in good faith, and maintain confidentiality; sign agreements if reached (p. 133).

Key Insight: CAM’s clear process and defined roles ensure efficiency and accountability.

Reflection Question: How does the mediator’s role in drafting agreements support the court’s enforcement power?

3. Legal Framework and Practical Considerations

CAM operates within a robust legal structure with practical implications, as per the handbook (Module 10, pp. 136-137):

• Legal Framework:
  • Constitution of Kenya (2010): Article 159(2)(c) mandates ADR, including mediation, as a judicial principle (p. 131).
  • Civil Procedure Act: Section 59A establishes MAC to accredit mediators, set training guidelines, and enforce ethics (p. 131).
  • Mediation Rules 2015: Outline referral, confidentiality, session conduct, and settlement processes (p. 136).
  • Judiciary Mediation Manual: Provides practical guidelines, including forms for notices and agreements (p. 136).
  • International Norms: The Singapore Convention (2018) influences enforceability, aligning CAM with global standards (p. 136).
• Practical Considerations:
  • Timeline: Must conclude within 60 days, extendable by 10 with consent or complexity justification (p. 132).
  • Fees: Mediators are paid by the court per MAC’s fixed scale; parties incur no direct cost (p. 135).
  • Enforcement: Agreements are filed and adopted as court orders, with no appeal allowed, ensuring finality (p. 135).

Key Insight: CAM’s legal backing and practical structure make it a powerful tool for justice.

Reflection Question: Why might the no-appeal rule encourage parties to commit to CAM agreements?