Mediation

Mediation is a voluntary, confidential, and non-binding form of dispute resolution in which a neutral third party (the mediator) assists the disputing parties to negotiate a mutually acceptable settlement. Unlike arbitration or litigation, the mediator does not make a decision or impose a solution — the parties themselves craft the settlement, with the mediator's facilitation. In Kenya, mediation is governed by the Mediation Act, 2023, the Civil Procedure Act (for court-annexed mediation), and the various institutional rules (including the Nairobi Centre for International Arbitration Mediation Rules and the CIArb Mediation Rules). Mediation has become an increasingly important part of the Kenyan dispute resolution landscape, driven by the congestion of the courts and the growing recognition that mediated settlements are often faster, cheaper, and more durable than litigated judgments.

This area covers the full range of mediation proceedings. Advocates act as counsel for parties in mediation — preparing the client for the mediation, presenting the client's case at the mediation, negotiating the settlement, and drafting the settlement agreement. Advocates also serve as mediators — facilitating the resolution of disputes between other parties as a neutral third party.

Advocates handle court-annexed mediation — the mediation programme that is integrated into the court system, under which civil cases filed in the High Court and the Magistrates' Courts are referred to mediation before they proceed to trial. Advocates prepare the mediation bundle, the position paper, and the settlement proposals, and they represent the client at the mediation sessions. The work also covers the procedural rules that govern court-annexed mediation, including the requirement for mediation to be completed within 60 days and the consequences of a party's failure to participate in good faith.

Advocates handle private mediation — mediation that is conducted outside the court system, under a mediation agreement between the parties or under the dispute resolution clause of a contract. The work also covers the various mediation styles — facilitative (where the mediator focuses on facilitating communication and negotiation), evaluative (where the mediator provides an assessment of the merits of the case), and transformative (where the mediator focuses on empowering the parties and improving their relationship). Advocates select the style that is most appropriate for the dispute and the parties.

Advocates handle the drafting of mediation clauses — the contractual provisions that require the parties to mediate before (or instead of) litigating or arbitrating. Advocates draft mediation clauses that are clear, enforceable, and practical — specifying the mediation rules, the mediator selection process, the language, the seat, and the timeline. Advocates also advise on the integration of mediation with arbitration and litigation — including "med-arb" clauses (where the mediator becomes the arbitrator if the mediation fails) and escalation clauses (which require negotiation, then mediation, then arbitration).

Advocates prepare and review settlement agreements — the documents that record the terms of the settlement reached in mediation. Advocates ensure that the settlement agreement is clear, complete, and enforceable — whether as a contract, as a consent order of the court, or as a mediated settlement agreement under the Mediation Act. Advocates are mindful of the tax implications of settlement terms, the confidentiality of the settlement, and the mechanisms for enforcement if a party fails to comply.

In practice, mediation is often the best way to resolve disputes — particularly in commercial relationships that the parties wish to preserve, in family disputes where the parties will continue to interact, and in employment disputes where the parties wish to avoid the cost and publicity of litigation. Advocates approach every mediation with a genuine commitment to settlement, while vigorously protecting the client's interests and ensuring that any settlement is fair and commercially sound.