Lawyers and the Judiciary are locked in a fight over the role of non-advocate court-backed mediators in settling cases amid fears that the expanding mediation is shrinking traditional legal work and income for attorneys.
At the centre of the dispute are allegations of unregulated advertising of mediation services by non-advocate mediators, transparency in case allocation, mediator accreditation, remuneration, and competence.
This is compounded by fears that mediators are gradually taking over legal work traditionally handled by lawyers, especially those who specialized in commercial, land and property disputes.
Court-Annexed Mediation (CAM) is the Judiciary’s alternative dispute resolution programme designed to settle disputes outside lengthy court hearings, reduce case backlog and preserve relationships, and it has resolved disputes worth Sh52.2 billion since its launch in 2016.
Following the tension, the Judiciary and the Law Society of Kenya (LSK) have now entered urgent negotiations to contain the conflict and prevent disruptions to the fast-growing mediation programme.
The tension escalated recently after sections of advocates, particularly in Nairobi, threatened to boycott judicial directions requiring their clients to participate in mediation proceedings led by individuals without legal training.
The lawyers argued that the Judiciary was enabling non-lawyers to encroach on legal practice through mediation. They cited the Advocates Act, which bars persons without practising certificates from practising law. They framed the issue as a “Judiciary-aided infiltration” of their profession.
The standoff forced the Judiciary Steering Committee on Mediation and the LSK into negotiations that culminated in a joint communiqué signed at Milimani Law Courts.
In the document, the two institutions acknowledged growing complaints from advocates over mediator competence, ethical standards, accreditation delays, remuneration and transparency in the allocation of cases.
The Judiciary and the LSK also agreed to investigate allegations involving misuse of Judiciary logos and unregulated advertising by non-advocate mediators.
The concerns have intensified as mediation increasingly handles high-value commercial, family, succession and land disputes that traditionally generated substantial legal fees for advocates through court proceedings.
At the centre of the silent turf war is the Judiciary’s payment system for mediators and growing anxiety among unemployed and underemployed lawyers over shrinking opportunities within traditional litigation practice.
Under the Court-Annexed Mediation programme, the Judiciary pays mediators a flat Sh20,000 per case regardless of the value of the dispute or property involved.
Each mediation matter is expected to be concluded within 60 days, making the process significantly faster than ordinary litigation which can take years.
Cases are allocated through an online Judiciary system, although parties remain free to mutually select their preferred mediator.
Some mediators currently serve up to six court stations due to growing demand for mediation services across the country.
There are at least 1,515 accredited mediators nationwide following the expansion of mediation services to all 47 counties and more than 100 court stations and sub-registries.
The mediation programme currently covers the High Court, Magistrates Courts, Kadhi Courts, Small Claims Courts, the Employment and Labour Relations Court, the Environment and Land Court, the Court of Appeal and several tribunals.
The joint communiqué reveals the extent of institutional concern over how the mediation system is operating.
The Judiciary and the LSK agreed to strengthen oversight mechanisms, tighten regulation of mediators and improve transparency in the screening, allocation and referral of cases under CAM.
‘We resolve to develop and implement a mechanism to collect and analyse mediation payment practices to ensure fairness, transparency, and timely remuneration for mediators particularly addressing concerns raised by advocate mediators,’ the communiqué states.
The two institutions further resolved to strengthen regulation, accreditation and oversight of mediators operating within the CAM framework in order to uphold professional integrity and public confidence in mediation services.
‘This will also entail investigating allegations of misuse of Judiciary logos and unregulated advertising by non-advocate mediators and enforcing regulatory compliance,’ the communiqué says.
The Judiciary and the LSK also pledged to work with the Attorney-General’s office to develop new Alternative Dispute Resolution legislation and policy aimed at strengthening mediation practice.
A technical committee comprising representatives from both institutions is expected to develop an action plan and report back within 45 days.
But mediators insist they are being unfairly targeted by sections of the legal profession resisting structural changes within the justice system.
Mr James Mutitu, a mediator, said mediators do not compete with lawyers because their role is limited to helping parties reach amicable settlements.
‘We get cases from the Judiciary, not from lawyers. Cases are allocated by the Judiciary. It is also a choice for parties in a dispute to submit themselves to mediation,’ he said.
Mr Mutitu defended the participation of non-lawyers in mediation, arguing that dispute resolution requires negotiation and reconciliation skills rather than legal training.
‘To be a mediator you do not need to be a lawyer or have legal training. You need skills to bring people together, create harmony and resolve disputes,’ he said.
‘As mediators, we have no beef with lawyers. Lawyers should accommodate mediators within the mediation framework and rules.’
Chief Justice Martha Koome has consistently defended mediation as a critical pillar of justice reform, arguing that traditional litigation alone cannot address mounting case backlog and delayed justice.
Judiciary data shows the mediation programme has restored more than 8,115 relationships between disputing families and resolved thousands of disputes that had remained in court for years.
The Judiciary says mediation also provides confidentiality, flexibility and preservation of relationships because parties negotiate settlements outside adversarial courtroom battles.
The latest negotiations between the Judiciary and the LSK now highlight the delicate balancing act facing Kenya’s justice system as mediation expands while lawyers push to protect the boundaries of legal practice.