Mediation & Alternative Dispute Resolution

The landscape of justice in Kenya is undergoing a profound shift, moving away from a purely adversarial courtroom model toward a “multi-door” approach. Alternative Dispute Resolution (ADR) has evolved from a secondary option into a central pillar of the legal system, designed to reduce case backlogs and restore social harmony.

The Legal Foundation

The push for ADR is rooted in Article 159(2)(c) of the Constitution of Kenya (2010), which mandates the Judiciary to promote alternative forms of dispute resolution, including reconciliation, mediation, and arbitration.

Key legislative developments include:

• The Mediation Act (2020): Provides a comprehensive statutory framework for mediation, defining the process and establishing a committee for mediator accreditation.
• Court-Annexed Mediation (CAM) Rules (2022): Allows courts to refer pending cases to mediation at any stage before judgment.
• Social Transformation through Access to Justice (STAJ): A current Judiciary blueprint (2023–2027) that treats the courtroom as just one of many doors to justice.

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Key ADR Mechanisms in Kenya

Mechanism	Description	Enforcement
Mediation	A neutral third party (mediator) helps parties reach a voluntary settlement.	Mediated agreements can be registered as court orders.
Arbitration	A formal process where an arbitrator makes a binding decision (award) after hearing evidence.	Binding and enforceable under the Arbitration Act.
Negotiation	Direct or assisted communication between parties to resolve differences without a neutral third party.	Resulting contracts are enforceable as private agreements.
Traditional/Alternative Justice Systems (AJS)	Community-based resolution using traditional mechanisms and elder councils.	Recognized under Article 159 of the Constitution.