Judiciary proposes mandatory mediation before court option
11 months ago, 14 Jan 20:25
The Judiciary is in talks with other stakeholders over the possible introduction of mediation as a mandatory primary step in handling civil disputes before they are filed in court. Presiding Judge at the Commercial and Admiralty Division Justice Fred Ochieng said talks were ongoing with a view to speeding up the release of billions of shillings held in litigation that is derailing development, thereby hurting the economy. Civil cases usually involve private rows between persons or organisations while criminal cases involve an action that is considered to be harmful to society as a whole. A civil case begins when a person or entity called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff. Both the plaintiff and the defendant are also referred to as parties or litigants. “The sooner we resolve disputes the better for Kenya since local and foreign investors will have faith in our legal system. No one wants their money held or projects derailed as this is a costly affair to both litigants,” said judge Ochieng. In an exclusive interview with the Sunday Nation, Justice Ochieng, who co-chaired the Alternative Disputes Resolution Taskforce, said litigants will be required to file proof as to having sought mediation or any other form of alternative disputes resolution. “The future will see warring factions required to disclose any efforts made to seek mediation before coming to court and where a party hardly sought such services or is found to have lied, then the suit will be struck out. As of now, we are building capacity amongst the magistracy as well as lawyers who are an integral part in advising clients on the need to embrace mediation,” he said. Justice Ochieng, who started practicing law in 1983 when he joined Kaplan & Stratton Law firm specialising in commercial litigation until he was appointed a judge in 2003, said mediation has a central role in enhancing business and family ties. “Which bank wants to be seen as fond of attaching their client’s properties. Which client will go to such a bank? We are seeing a change of heart where banks now engage their clients in case of a default and mostly end up in court if a client defaults on an agreed second proposal for repayment,” he said. Speaking on the progress made on last December’s roll-out of a phased court-mandated mediation process within Nairobi courts, Justice Ochieng said a Mediation Accreditation Committee had since been formed to vet would-be mediators before an eventual national roll-out is launched starting with Mombasa, Nakuru, Kisumu and Eldoret. Justice Ochieng said they had agreed with other stakeholders that requirements that mediators must be degree holders in any discipline would be done away with to enable known negotiators have a chance to resolve disputes. In his experience as a judge and lawyer, he said, mediation appeared to be the best cure to bitter relations as both parties get an opportunity to offer solutions and ...
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