CHAPTER 5

CONCLUSION AND RECOMMENDATIONS

Table of Contents
1.0 Introduction................................................................................................................................1

1.1 Recommendations......................................................................................................................2

1.1.0 Legislation...........................................................................................................................2

1.1.1 Funding...............................................................................................................................3

1.1.2 Digitization of the mediation process.................................................................................3

1.1.3 Training...............................................................................................................................4

1.1.4 Sensitization among the advocates.....................................................................................4

1.1.5 Political will........................................................................................................................5

1.1.6 Limit on the unfettered discretion of judicial officers to refer matters to mediation..........5

1.2 Conclusion.................................................................................................................................6
1.0 Introduction
This research paper sought to analyze the mediation advocacy standards in relation to the non-

advocate mediators by identifying the institutional, legal and practice challenges facing the

practice of the non-advocate mediators. Chapter 2 examined the legal and institutional

framework loopholes that hinder the practice of non-advocate mediators in Kenya noting that

there was inadequate legal and institutional framework that can help in the upgrade of the

mediation advocacy standards for the non-advocate mediators. Chapter 3 explored current status

of mediation advocacy standards in Kenya, the challenges faced by the non-advocate mediators,

the opportunities present and the relationship between the non-advocate and the advocate

mediators. It was noted from the chapter that the challenges faced by the non-advocate mediators

go to the core of practice and therefore reforms are best suited to begin with the foundational

training of the mediators so as to create an equal practice field for all the mediators. Chapter 4

undertook a comparative sturdy of mediation advocacy standards in other countries to identify

the best practices worth implementing in Kenya. It was noted that the Kenyan legal system has

taken some steps to ensure fair practice of both the advocate and the non-advocate mediators,

however this was not enough since some countries had gone a mile further in ensuring that the

practice of the non-advocate mediators was at the expected standards.

1.1 Recommendations
The recommendations provided for herein explain the possible ways through which the

aforementioned challenges can be resolved.

1.1.0 Legislation
It is to be noted that the area of mediation advocacy standards for non-advocate mediators is

under regulated. As far as the research is concerned there is no act nor policy in Kenya that tries
to address the challenges facing the non-advocate mediators or that tries to guide the practice of

the non-advocate mediators. In such a legal environment, there are chances of transgressions or

practice that greatly undermines the potential of the non-advocate mediators. The parliament as

mandated by the Kenyan constitution, it needs to give effect to the letter and spirit of the

constitution on access to justice in an effective manner. This is by ensuring that there is a law or

policy that ensures the non-advocate mediators practice in a healthy environment. It’s also worth

noting that the chief justice has the power to make rules for practice just like the former chief

justice David Maraga made the rules for ICT practice during the Covid 19 pandemic, in the same

breadth then it’s incumbent upon the current chief justice to make rules with regards to the

mediation advocacy standards and the practice rules for the non-advocate mediators. This is a

way to guard the practice of the non-advocate mediators. It is through legislation that the

problems such as that of blurred boundaries will be addressed.

1.1.1 Funding
It is to be noted that some of the opportunities available for the non-advocate mediators are those

that really need funding so that they can come to fruition. An example relates to the issue of

career development programmes within the mediation section of the judiciary. It is known that

such programmes take planning and facilitation of the various trainers. Currently as the

mediation is constituted, then it can hardly achieve this. With the recent actualization of the

judiciary fund, it’s my opinion that the judiciary can be able to allocate a part of its budget to the

mediation process so as to make it autonomous and able to achieve the intended goals. The

mediation process through enough funding, it can be able to develop the careers of the non-

advocate mediators and additionally carry out effective programmes such as the exchange

programmes that will ensure the mediation advocacy standards are improved.
1.1.2 Digitization of the mediation process
It is to be noted that some of the discriminatory grounds on the non-advocate mediators can be

avoided by digitization of the mediation process. This is to the effect that where the court is

manually provided with a list from which they are supposed to choose a mediator, then that

would probably be a breeding ground for discrimination or claims of unfairness. This is because

one may choose that mediator whom they prefer and deem competent enough even when they

have a lot of pending matters to deal with.

The best way to deal with this would be that there should be mediation portal with identification

codes for the mediators. All the qualified mediators who are registered in the court annexed

mediation registry need to be registered into this portal. When a matter comes up that needs to be

solved then selection of a mediator should be random and based on the fact that if one has a

pending matter to be solved then it’s not in the interest of timely delivery of justice to add such a

mediator another matter to handle. The portal should basically rely on the concept of those

mediators available for taking up the matters then they should be given the matters without any

need to know their identity or any other barriers. This will create an equal practice field for all

the mediators.

1.1.3 Training
With regard to the training of the non-advocate mediators, there is an urgent need to ensure that

the training curriculum is upgraded. The current curriculum demands that one only needs 48

hours to become a mediator worth practicing in the mediation process of Kenya. With the current

technical matters being referred to the mediation process, clearly that cannot be enough to churn

out competent mediators. The curriculum should be made more comprehensive and to include

some basic legal concepts. It’s an irrefutable fact that at times there is need for understanding of

basic legal concepts when solving the mediation matters. This is in view of the fact that while
mediation is independent form the court process, it still has to make decisions that comply to the

law. It does not operate in a vacuum and therefore a basic understanding of the law is paramount.

This will help balance the power inequalities that currently exist between the advocate and the

non-advocate mediators on the competency grounds.

1.1.4 Sensitization among the advocates

More often there have been complains that the advocates who are mediators have imported the

court system into the mediation process hence making it an unfavorable environment for practice

of the non-advocate mediators. This creates power imbalances as one party is well informed on

matters law while the other party is least informed on the matters law. There is therefore the

pertinent need to create awareness among the advocates on the functions, objects and purpose of

the mediation process. This will go a long way in trying to ensure that the mediation process

maintains the objects and purpose for which it was meant to achieve. Importation of the court

system into the mediation process then creates another backlog of mediation matters since parties

are more interested in protection of personal interests and not solving the matters. The mediation

process should focus more on solving the matters by parties being able to compromise their

grounds so as to reach an agreement. This can be achieved if sensitization is done among the

advocates.

1.1.5 Political will

While the arms of the government are independent, they are also interdependent. The judiciary

ought to use to their advantage and make it known to both the legislature and the executive the

importance of the mediation process. With this, then the mediation will be able to secure the

needed support in terms of funding and laws so as to enable an improvement on the mediation

advocacy standards. It is to be noted that some programmes such as the review of the curriculum
need the change and enactment of new laws. This can only be achieved if there’s the will of the

legislature. Additionally, heavy funding would be needed to ensure that all the measures in place

are achieved and implemented and this can only be achieved is there is the will of the executive

as it is in my view that the judiciary fund may not be sufficient to cater for both the mediation

financial matters and the judiciary financial matters.

1.1.6 Limit on the unfettered discretion of judicial officers to refer matters to mediation
Currently as it exists, the judicial officers have the power to refer any matter to mediation as long

as the parties are willing or the judicial officer feels the matter is best handled through mediation.

Such excess power is prone to abuse and therefore there’s is need to limit it. Having such power

then makes it possible to run the risk of referring matters that necessitate pure application of the

law hence an importation of the court system into the mediation process. There’s therefore the

need to ensure that only matters that can be handled through mediation are sent to mediation to

ensure an equal play field for the advocate mediators who know the law and the non-advocate

mediators who are not well versed with the law.

1.2 Conclusion
Alternative dispute resolution is advocated for by the constitution whereby the judiciary is

expected to promote the ADR system. In view of the above this research has focused on

mediation and specifically in relation to the mediation advocacy standards of the non-advocate

mediators. It can be noted that mediation should not only be pegged on clearing of the backlog of

cases in our courts but also on the effective and competent manner in which the process is dealt

with or handled. Noting the potential that the mediation process has and the importance of the

non-advocate mediators and the role they play in shaping up the process, this research sought to

examine the legal and institutional challenges that face the practice of the non-advocate

mediators, the opportunities available for the non-advocate mediators and went further to look at
the mediation advocacy standards from other jurisdiction to enable the importation of best

practices from the analyzed countries.

Chapter two examined the legal and institutional framework loopholes that hinder the practice of

non-advocate mediators in Kenya. This was with a view of identifying the key areas of law that

need reforms and also identifying the correct interpretation of the constitutional provisions that

give effect to mediation process in Kenya. Chapter three explored the current status of mediation

advocacy standards in Kenya, the challenges faced by the non-advocate mediators, the

opportunities present and the relationship between the non-advocate and the advocate mediators.

This chapter focused more on trying to create an ample practice environment for the non-

advocate mediators and focused on the general challenges that would inform the

recommendations and change that is to happen in mediation with regards to the mediation

advocacy standards of the non-advocate mediators. Chapter 4 undertook a comparative sturdy in

other jurisdictions with a view of identifying the shortfalls in our Kenyan mediation advocacy

standards system and making recommendations thereto.

The current mediation advocacy standards in relation to the non-advocate mediators pose a threat

to their constitutional rights and general practice. In view of this, it’s upon the judiciary together

with other players in the sector to ensure an improvement on the standards and conformity to the

letter and spirit of the constitution with regard to access to justice. Steps have been taken by the

judiciary for example, creation of the mediation practice rules so as to ensure smooth running of

the process. It should be noted however that the steps taken are not sufficient to deal with the

matter before hand effectively. Once the matters and issues raised herein are solved, the non-

advocate mediators shall be able to dispense their duties with refreshing and superb skill.