An analysis of mandatory mediation

Ba Wazir, Maliha Swaleh

An analysis of mandatory mediation

Date

2016

Authors

Ba Wazir, Maliha Swaleh

Publisher

Strathmore University

Abstract

This paper aims to research on mandatory mediation and the various schemes used in different countries specifically the United Kingdom, Italy and the United States so as to inform Kenya's approach. The research aims to cover the various attributes of mediation and contradistinguish them according to the attributes found in mandatory mediation. This will be done by analysing the pros and cons of making mediation mandatory. The research uses the qualitative approach in its study of the trends in the jurisdictions. The research heavily relies on secondary data from books, journals, online resources, case law, legislation, treaties and news articles to analyse the current systems. Pursuant to the secondary data obtained in this research, the shortcomings that come along with mandatory mediation shall be dealt with and the various arguments put forward by legal scholars. This is due to denial of access to justice. The denial of access to justice has been deliberated upon by various jurists who include Lord Woolf, L.J Dyson among others. As such the denial of access justice is an affront to the principles of natural justice. As was established in the case of Halsey V Milton Keynes the honorable L.J Dyson stated that it is one thing to encourage parties or even encourage them strongly to mediate and another to compel them to do so. He further stated that it could lead to a denial of justice which is against the spirit of the courts.For the Kenyan scenario what should have been legislated is the encouragement and voluntary referralas provided for in the Constitution and Civil Procedure Act as an Alternative Dispute Resolution.However mediation should remain as an alternative to litigation and not as a compulsory referral system within the litigation process. The court system consequently should have an encouragement to mediation rather than a compulsion backed by sanctions in the form of fines . This will enhance access to justice from the onset by choice of dispute resolution and provide a variety of choice for dispute resolution mechanisms.