Arbitration has long been regarded as the best form of alternative dispute resolution. Indeed, the arbitration process was cemented into Kenyan law with the enactment of the Arbitration Act.

Increasingly, however, arbitration has begun to resemble the process to which it seeks to offer an alternative – that is, the court process. Many lawyers have made the process of arbitration their own, and tactics that are often employed in court such as delaying tactics, needless adjournments and grandstanding are slowly turning arbitration into the antithesis of what it was intended to be: a quick, affordable and efficient way of delivering justice.

In this light, the question arises: what are the alternatives to litigation and arbitration? The answer is mediation.


Mediation is a method of non-binding dispute resolution which involves a neutral third party (ie, a mediator) attempting to help the disputing parties to reach a mutually agreeable solution.

During the mediation, each side presents its view of the issue, and the mediator works with each side in a caucus to attempt to work out a settlement. At the end of the process, the mediator may present his or her findings and present a potential solution to the issue. The mediation process, unlike arbitration, is non-binding; the mediator does not impose a decision on the parties, but rather attempts to present a solution that is acceptable to both parties.

Mediation can be a highly effective medium of dispute resolution in commercial transactions, and is popular with parties which want to avoid having their business relationships strained and that are looking for quick and harmonious settlements to disputes.

The High Court decision in George M Musindi v Small Enterprises Finance Co(1) is a case in point. In this case, the judge echoed the words of the United Kingdom's Lord Justice Ward in Burchell v Bullard(2) in stating that "the court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value".


Although mediation is informal, the process is well defined. A typical mediation process works as follows:

  • The mediator begins the process by addressing the parties. He or she introduces himself or herself to the parties, sets the general tone for the mediation and lays the ground rules for how the proceedings will transpire.
  • The parties then introduce themselves and their representatives to each other and issue opening remarks.
  • Each party is then given the chance to tell its side of the story. During this process, the mediator listens carefully and may ask questions to confirm his or her understanding of the facts.
  • Next comes the important stage of caucusing. A so-called 'caucus' is a private meeting between one party and the mediator. During the caucuses, the mediator talks with each party, proposing solutions and attempting to get each party to commit to a mutually acceptable settlement. The mediator shuttles between the parties proposing viable settlement agreements.
  • The mediation process is then brought to a close. The mediator may address the parties jointly on his or her views on the dispute, and may prepare a final settlement proposition for the consideration of the parties (if no settlement has been reached by this point).


In most cases the mediation process resolves at least some of the disputed issues. On average, mediation sessions take one-and-a-half days. Of all the cases that are referred for mediation, 80% are settled in that time.(3)

For further information on this topic please contact Paul Njoroge Kimani at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).


(1) [2007] eKLR Civil Case 1861 of 1995.

(2) (2005) EWCA Civ 338.

(3) Anthony Gross, "The Role of Legal Ethics and Jurisprudence in Nation Building" (2004).