Mediation is an increasingly popular method of dispute resolution in Kenya. If you find yourself in a conflict with another party, mediation can be a less costly and less time-consuming option than going to court.
Mediation is a voluntary process where a neutral third party helps two or more parties in conflict reach a mutually satisfactory agreement.
In this article, Kraido’s team of lawyers and Certified Professional Mediators give insights into the benefits of mediation in Kenya, the mediation process, and why you need a mediation lawyer.
Contact us today for further legal consultation regarding mediation in Kenya or for representation in your mediation process by calling +254 799 180 755, emailing [email protected], or sending us a message via our Free Inquiry Form
6 Benefits of Mediation in Kenya
Mediation is an increasingly popular alternative to litigation in Kenya. Here are some benefits of mediation that you should know:
- Cost-Effectiveness: Mediation is often less expensive than going to court. You do not need to pay for court fees and other litigation costs. Instead, you only need to pay for the mediator’s services, which are usually less expensive.
- Faster Resolution: Mediation is often quicker than going to court. You can schedule mediation sessions at a convenient time, and the mediator can help you resolve your dispute in as little as one session, which can take a few hours.
- Confidentiality: Mediation is a confidential process. Anything discussed during the mediation session cannot be used in court. This allows parties to speak openly and honestly without fear of repercussions.
- Control: Mediation gives you more control over the outcome of your dispute. You and the other party are in charge of the outcome, not a judge or jury. This allows for more creative solutions that are tailored to your specific needs.
- Preserves Relationships: Mediation is a collaborative process that can help keep relationships. Unlike litigation, which can be adversarial, mediation encourages parties to work together to find a solution that works for everyone.
- Flexibility and Emotional Aspects: Mediation can factor in elements like emotional issues, which would often go unattended by the court of law.
In summary, mediation is a cost-effective, faster, confidential, and collaborative process that gives you more control over the outcome of your dispute and can help preserve relationships.
What Is the Process of Mediation in Kenya?
Mediation in Kenya is a voluntary, non-binding process in which a neutral third party facilitates communication and negotiation between disputing parties to help them reach a mutually acceptable resolution.
The mediator does not make decisions or impose solutions but instead helps the parties to identify issues, explore options, and find common ground.
The process of mediation in Kenya typically involves the following steps:
- Initiation: The parties to a dispute agree to participate in mediation and select a mediator. The mediator may be chosen by the parties or appointed by an institution such as the CIArb (Chartered Institute of Arbitrators).
- Opening statement: The mediator introduces themselves and explains the mediation process. The parties are given an opportunity to make an opening statement to express their perspective on the dispute.
- Information gathering: The mediator asks questions to clarify the issues and gather information about the interests, needs, and concerns of each party.
- Negotiation: The parties are encouraged to explore options and generate proposals for resolving the dispute. The mediator may facilitate communication and help the parties to identify common ground.
- Agreement: If the parties reach an agreement, the mediator helps them draft a written agreement that reflects the terms of the settlement. The parties sign the agreement, and it becomes legally binding.
- Closure: The mediator concludes the mediation process and provides the parties with a copy of the agreement.
The process of mediation in Kenya can be used to resolve a wide range of disputes, including commercial, family, community, and environmental disputes.
Mediation is often faster, cheaper, and more flexible than litigation and can help to preserve relationships and promote cooperation between the parties.
How Long Does Mediation Take in Kenya?
Mediation is often a faster and less expensive alternative to litigation. In Kenya, the time it takes to complete a mediation process can vary depending on several factors.
On average, mediation in Kenya takes anywhere from a few hours to one week to complete. In isolated incidences, it can take weeks or months, especially for complex cases like those involving massive corporations or if the parties need breaks in between to recollect facts for their case.
Here are some factors that can influence how long mediation takes in Kenya:
- The complexity of the dispute: More complex disputes may require more time to resolve. For example, a dispute involving multiple parties or a dispute that involves technical or legal issues may take longer to mediate.
- The willingness of the parties to compromise: If the parties are willing to compromise and work together to find a solution, mediation may be completed more quickly. However, if the parties are unwilling to compromise, mediation may take longer or may not be successful.
- The availability of the mediator: The availability of the mediator can also impact how long mediation takes. If the mediator has a busy schedule, it may take longer to schedule mediation sessions.
It is important to note that in Kenya, mediation is often much faster than litigation, which takes years on average to complete.
Legal Aspects of Mediation
Mediation in Kenya is governed by the Mediation Act, 2020, which was a move by parliament to allow parties to settle civil disputes by mediation in Kenya.
The Act provides a legal framework for the mediation process, including the appointment of mediators, confidentiality, and the enforcement of mediated settlements.
The Mediation Act also establishes the Mediation Accreditation Committee, which is responsible for accrediting and regulating mediators in Kenya.
Mediation is recognized as a valid alternative to litigation in Kenya. Parties can choose to mediate disputes before or after filing a case in court. Mediation can be court-annexed or private.
In court-annexed mediation, the court refers the parties to mediation, for example, in certain family-related matters like divorce or property disputes, while in private mediation, the parties agree to mediate their dispute outside of court.
Mediation is particularly useful in resolving civil disputes involving family law, employment, and commercial matters.
Why You Need a Mediation Lawyer
While you can go through the mediation process without a lawyer, it is highly recommended that you hire a mediation lawyer to represent you.
Here are some reasons why you need a mediation lawyer:
- Helps Identify Legal Pitfalls: A lawyer can identify loopholes in your contract that the other side can exploit and ensure that the agreement falls within the scope of the law. Your lawyers should be around to guide you and interpret the contracts for you during a mediation process.
- Legal Expertise: A mediation lawyer has the legal expertise to help you understand the legal implications of your dispute. They can help you understand your rights and obligations and how they relate to your dispute. They can also help you navigate complex legal issues that may arise during the mediation process.
- Negotiation Skills: A mediation lawyer has the negotiation skills to help you achieve a favorable outcome. They can help you identify your interests and goals and develop a strategy to achieve them. They can also help you communicate effectively with the other party and the mediator to reach a mutually acceptable solution.
- Confidentiality: A mediation lawyer can help you ensure that your confidential information remains confidential. They can help you draft a confidentiality agreement that will protect your information from being disclosed to third parties.
- Enforcement: A mediation lawyer can help you enforce the terms of your settlement agreement. If the other party fails to comply with the terms of the agreement, your mediation lawyer can help you take legal action to enforce it.
In conclusion, hiring a mediation lawyer can help you achieve a successful outcome in your dispute. They can provide you with legal expertise, negotiation skills, confidentiality, and enforcement options that can help you resolve your dispute in a timely and cost-effective manner.
Is Mediation Legally Binding in Kenya?
One of the most common questions asked about mediation is whether or not the agreements reached during the mediation process are legally binding.
The answer is yes; mediation is legally binding in Kenya. Once the parties involved have agreed to a settlement, they sign an agreement that outlines the terms of the settlement in the presence of witnesses, and the agreement can be enforced in court if necessary.
Here are a few key points to keep in mind regarding mediation agreements in Kenya:
- Mediation agreements are enforceable in court as long as they meet the legal requirements for a valid contract, such as the presence of witnesses.
- Mediation agreements can be enforced through court proceedings, just like any other contract.
- The parties involved in the mediation process can choose to have their agreement be legally binding or non-binding. If they decide a non-binding agreement, they will not be able to enforce it in court.
If you are considering using mediation to resolve a dispute, it is important to understand the legal implications of the process and to work with a qualified mediator who can help guide you through the process.
How Do I Enforce a Mediation Agreement in Kenya?
Once you have reached a settlement agreement through mediation, it is essential to ensure that the agreement is legally binding and enforceable.
Here is what you need to know about enforcing a mediation agreement in Kenya:
- Firstly, it is important to ensure that the mediation agreement is properly drafted and executed. This means that the agreement should clearly outline the terms of the settlement and should be signed by all parties involved in the mediation process with witnesses present.
- Once the mediation agreement has been properly executed, it can be enforced in the same way as any other contract. This means that if one party fails to comply with the terms of the agreement, the other party can seek legal remedies through the courts.
- In order to enforce a mediation agreement in Kenya, you will need to file a lawsuit in court. This lawsuit should be based on a breach of contract and should clearly outline the terms of the mediation agreement that have been breached.
- If the court finds that the mediation agreement has been breached, it can issue a court order requiring the breaching party to comply with the terms of the agreement. This court order can be enforced through various legal remedies, such as seizing assets or imprisonment.
- It is important to note that mediation agreements are generally more straightforward and less expensive to enforce than court judgments. This is because mediation agreements are often more specific and tailored to the needs of the parties involved, which makes them easier to implement than general court judgments.
Once you have reached a settlement agreement through mediation, it is crucial to ensure that the agreement is drafted correctly and executed (signed) so that it can be enforced in the same way as any other contract.
Finding a Mediator in Kenya
For further consultation regarding mediation in Kenya or if you need expert legal support for your mediation, we encourage you to contact us today by calling +254799180755, emailing [email protected], or sending us a message via our Free Inquiry Form.
