Recent judicial pronouncements in Kenya, such as Burn Manufacturing USA LLC v Sage South Africa (PTY) Limited [2020] eKLR, demonstrate a growing emphasis on Alternative Dispute Resolution (ADR) mechanisms, particularly mediation, in resolving family disputes. This shift reflects the judiciary's commitment to reducing case backlogs, enhancing access to justice, and promoting more amicable and efficient dispute resolution processes. Notably, the introduction of the Family Mediation Guidelines in November 2024 underscores this commitment by providing a structured framework for conducting family mediations.
Family mediation offers a confidential and voluntary process where a neutral third party, the mediator, facilitates communication and helps disputing parties reach a mutually agreeable resolution. This approach, by prioritizing collaborative problem-solving, minimizes the adversarial nature of traditional litigation and can significantly reduce the emotional and financial strain on families.
Key Stages of the Mediation Process:
1. Appointment of Mediator: The process typically begins with the appointment of a qualified mediator, either through court referral or by mutual agreement of the parties.
2. Mediation Information and Assessment Meeting (MIAM): A crucial initial step, the MIAM provides an opportunity for the mediator to assess the suitability of mediation, discuss the process, and address any concerns or questions.
3. Mediation Sessions: Through a series of structured sessions, the mediator facilitates open communication, explores underlying issues and guides the parties toward potential solutions.
4. Agreement Drafting: Once an agreement is reached, the mediator assists in drafting a comprehensive and legally sound settlement agreement.
5. Agreement Review and Signing: The parties carefully review the agreement, seek legal counsel if necessary and sign the document once they are fully satisfied.
Enforcing Family Mediation Agreements
The enforceability of family mediation agreements is paramount to ensure the integrity of the process and to protect the interests of all parties. The court plays a crucial role in upholding these agreements.
· Application for Enforcement: Parties can apply to the court for the enforcement of a mediation agreement through a formal application.
· Court Review: The court reviews the agreement to ensure it is fair, reasonable and does not contravene public policy.
· Order or Decree: Upon satisfaction, the court issues an order or decree reflecting the terms of the agreement, making it legally binding.
Challenges and Considerations:
· Confidentiality: Maintaining the confidentiality of the mediation process is crucial for open and honest communication.
· Enforcement Challenges: Instances of non-compliance may arise, requiring the court to intervene and enforce the terms of the agreement.
· Role of Legal Counsel: While mediation aims for a collaborative approach, legal counsel can play a vital role in advising clients and ensuring their rights are protected.
· Child-Centered Approach: Prioritizing the best interests of the child throughout the mediation and enforcement process is essential.
Conclusion:
Family mediation offers a valuable alternative to traditional litigation, promoting amicable resolutions and minimizing the negative impact of family disputes on children. By effectively enforcing mediation agreements, the courts can strengthen the integrity of this process and ensure that the best interests of all parties are upheld.
Disclaimer: This information is for general knowledge and informational purposes only and does not constitute legal advice.
Contact Persons & Contributors
Nelima Walubengo Tindi (Senior Associate )- ntindi@cmadvocates.com
Maureen Njenga (Associate Advocate )- mnjenga@cmadvocates.com