The mediation rules are a glimmer of hope for Kenyans. A sign that we understand the shortcomings within our judicial system and the importance of protecting every individual’s right to access justice. The new mediation rules seek to impose mandatory mediation for all civil matters once they have been screened and approved for mediation by the Mediation Deputy Registrar.
This move is not something new. The move towards mandatory mediation has been a topic of discussion for a number of years and some countries have adopted it.
In Canada the Mandatory Mediation Program applies in Toronto, Ottawa and Windsor to certain civil actions under rule 24.1 of the Rules of Civil Procedure and to contested estates, trusts and substitute decision matters under rule 75.1 of the Rules of Civil Procedure. It was started on January 4, 1999 in Toronto and Ottawa, and in Windsor on December 31, 2002. The program requires that cases are referred to a mediation session early in the litigation process to give parties an opportunity to discuss the issues in dispute. With the help of a trained mediator, the parties explore settlement options and may be able to avoid the pre-trial and trial process.
In Italy the Law of 9th August 2013 n. 98, contains the new framework of rules regulating and promoting the use of mediation in civil and commercial disputes in Italy. There are three types of mediation one of which is mandatory mediation. In this case, a preliminary and mandatory attempt of mediation is imposed by law and becomes a condition precedent to bringing a suit in court.
Common features
Nature of the mediation
Just like in Kenya, the Canadian and Italian programs make mediation mandatory. The idea is to allow parties to come up with solutions to their specific situations and reduce the backlog in the court system.
Attendance
The parties are required to attend all mediation proceedings. If the parties have advocates or representation, such person should also be present during the proceedings. Parties present must have the authority to make decisions and participate in the formulation of any mediation agreements.
Non-compliance
Where parties fail to follow rules and/or fail to attend the proceedings, the mediator may file a form declaring non-compliance which would essentially lead to the case being reverted back to the courts.
Confidentiality and Inadmissibility
This is a common feature among all the jurisdictions mentioned. States seek to protect the individuals participating in the mediation. The parties cannot divulge any information revealed in the proceedings to parties outside the mediation.
The information is also inadmissible as evidence in any current or subsequent proceedings. Neither the mediator nor any party appearing in the proceedings can be compelled to give evidence with regards the mediation.
Agreements
If an agreement is reached, the same shall be filed in court. The agreement shall be legally binding and have the same effect as a judgment order if accepted by the court.
Common arguments against mandatory mediation
Mediation is a voluntary process
One main feature of mediation is that it is voluntary. It seems that mandatory mediation is an oxymoron. The element of voluntariness is completely lost once parties feel that they must do it. Parties are also reluctant to actively participate since they feel that mediation was “forced” on them.
Mediation adds another expensive stage to an already expensive system
The parties feel that they have to pay an unnecessary extra cost for mediation especially in cases where no agreement is reached during the proceedings.
Some cases involve a point of law that should be resolved at trial
Parties may feel that some matters are a matter of law that can only be resolved through the court.
Conclusion
The idea behind mandatory mediation is noble. However, does the mandatory nature of the mediation lead to erosion of the principles governing mediation the main one being voluntariness? Or should we focus more on the effect the mandatory mediation will have, such as solving disputes faster and reducing the case backlog?
We would love to hear your thoughts on the matter.
