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Arbitration and Mediation – No Need for Court

By considering alternative dispute resolution methods, businesses can effectively navigate through the challenges of globalization. Negotiation, Mediation, and Court-Annexed Mediation offer practical and efficient alternatives to court proceedings. These methods prioritize communication, creative problem-solving, and preserving relationships. With a proper understanding of ADR processes and the guidance of skilled mediators, businesses can achieve timely, cost-effective, and mutually agreeable resolutions while enjoying the benefits of privacy and confidentiality. Previously discussed are various ADR methods such as negotiation, conciliation, and collaboration: link. In this second part, we delve into Mediation and Arbitration.

Exploring Mediation for ADR

  1. Mediation – Facilitating Communication for Resolution

Mediation, as provided for by the Civil Procedure Act in Kenya, offers an effective means of resolving disputes. It involves a neutral third party, known as a mediator, who facilitates communication between the disputing parties to help them find a mutually agreeable solution. Unlike arbitration, the mediator does not impose a decision. Mediation is voluntary, informal, consensual, and confidential, empowering parties to choose their mediator, process, and outcome. It focuses on interests, creative solutions, and addressing the root causes of conflict. Compared to litigation, mediation gives parties more control, saves costs, and takes less time for resolution. 

Mediation has its challenges, particularly in the enforcement of any decision arrived at by the mediator since the mediator has no authoritative decision-making power. The aim of mediation is to preserve relationships, and the mediator guides the process to have the solution come from the parties themselves. 

(Note: Mr. Kevin Churchill of Cerno Thames Ltd, is a skilled mediator our firm has had positive interactions with and deserves recognition for his expertise in the field. Contact us if you need an introduction

  1. Court-Annexed Mediation in Kenya

In Kenya, mediation has been integrated into the court system through Court-Annexed Mediation, where a trained court officer acts as the mediator. A pilot project for Court Annexed Mediation began in 2016 at the Family Division, Commercial and Admiralty Division of the High Court, and was overseen by the Mediation Accreditation Committee, the Alternative Dispute Operationalization Committee, and the Secretariat Technical Working Group. In this process, a trained court officer reviews the case details and decides whether the case should be referred to mediation. The Court nominates three mediators from the list of accredited mediators, and the parties select their preferred one. The mediation process should be completed within sixty days from the referral date, and the parties sign a Mediation Agreement, which is filed with the Mediation Deputy Registrar. 

The Court-Annexed Mediation program integrates mediation into the court system. Trained court officers act as mediators, overseeing the process. Under this program, cases are

reviewed, and if suitable for mediation, the court nominates mediators from an accredited list. Parties select their preferred mediator, and the mediation process should be completed within sixty days. The resulting Mediation Agreement, once adopted by the court, becomes enforceable as a judgment or court order. The Court Annexed Mediation project has made significant strides in promoting mediation as an effective ADR method.


Arbitration is a legal process for resolving disputes outside of traditional court litigation. It involves referring a dispute to one or more impartial individuals called arbitrators or an arbitral tribunal. These arbitrators are selected by the parties or according to a predetermined procedure outlined in an arbitration agreement.

Arbitration in Kenya is primarily governed by the Arbitration Act, of 1995. This legislation sets out the legal framework for both domestic and international arbitration in the country.

The advantages of arbitration are numerous: 

  • It is faster than going to court. 
  • The process typically takes less time overall. 
  • Arbitration proceedings are confidential, whereas court hearings are public.
  • Arbitrators have the authority to make binding decisions, which means that the parties involved must abide by their ruling upon completion of the process. 
  • Parties can also agree on specific rules for conducting their arbitration in advance, which helps ensure that everyone follows protocol throughout the proceedings – these include matters such as the location of the arbitration, language and the rules to be adopted in conducting the arbitration. Once a decision is made by an arbitrator, the parties can apply the decision but if enforcement is required, the courts have been at hand to aid in the enforcement processes.

In summary, it is important for business owners to consider all their options when it comes to resolving disputes in order to save money and time in legal costs down the line. Ultimately, understanding how you can use alternative dispute resolution methods like mediation and

arbitration is key when running your own business, as it will help you save money while ensuring legal matters are handled efficiently and effectively.

To resolve disputes in your life or business quickly and effectively, we advise that you contact an experienced ADR professional today. AMM Law has a strong ADR practice and seldom engages in litigation/court matters. Contact us today for more enquiries – 

Article by Elizabeth Museo Muema – Admin & Communications, AMMLaw

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