Understanding Private Mediation: A Guide to Resolving Disputes Outside Court

/ Legal Updates & Insights / By

Introduction

Private mediation is a process where disputing parties, outside the scope of any ongoing court case, voluntarily engage a mutually agreed-upon, qualified mediator to help resolve their issues amicably. It offers a cost-effective, flexible, and confidential alternative to traditional litigation, ensuring that relationships between parties are preserved while avoiding lengthy court proceedings.

The Procedure for Enforcement of Private Mediation Agreements in Kenya

 
When a private mediation successfully concludes with a settlement agreement, the process to enforce this agreement involves several critical steps:
  1. Filing the Application
    The party seeking enforcement files a Notice of Motion Application for Enforcement of Private Mediation Agreement, as per Form 16 of the CAM Rules, 2022.
  2. Opening a Mediation File
    Upon receiving the application, the court registry creates a separate mediation file for the agreement.
  3. Court Review and Adoption
    • The mediation file is presented to the court within 14 days.
    • The court may direct that the other party be served with the application or require examination under oath before adopting the agreement.
    • If satisfied, the court adopts the agreement as a judgment and issues an order or decree reflecting its terms.
  4. Challenging the Adoption
    A party to the settlement agreement who was not given an opportunity to be heard before the court adopted the agreement can apply to set aside the adoption proceedings and any resulting orders.
  5. Appealing the Setting Aside Order
    If a party is dissatisfied with the court’s decision to set aside an adopted agreement, they may file an appeal within 14 days from the date of the order.

Principles of Mediation

  • Confidentiality: Information exchanged during private mediation is strictly confidential and cannot be used as evidence in court unless mandated by law in specific circumstances such as child abuse or other illegal activities.
  • No Appeals on Agreements: The terms of a private mediation settlement agreement cannot be appealed as they represent mutual consensus among the parties.
Private mediation continues to gain traction as an effective alternative dispute resolution mechanism. By providing clarity on enforcement procedures, you can ensure the agreements reached hold the weight of the law when necessary.

Need Expert Assistance?

At Mbuchi & Associates Advocates, we specialize in mediation and the enforcement of private mediation agreements. Reach out to us for tailored solutions to your legal needs. Subscribe to our newsletter for more insights on dispute resolution and legal developments