Mediation Agreement (Kenya)

A Mediation Agreement in Kenya is a legally binding contract between two or more disputing parties and a neutral third-party mediator that establishes the framework, rules, and obligations governing mediation proceedings under the Mediation Act No. 9 of 2012. The agreement records the parties' voluntary consent to submit their dispute to mediation, defines the mediator's mandate, sets out the confidentiality obligations of all participants, and specifies the legal effect of any settlement reached during the process.

The Mediation Act No. 9 of 2012 is the primary statute governing mediation in Kenya and applies to both court-annexed and private mediation. Section 4 of the Act defines mediation as a voluntary, non-binding process in which a neutral third party assists the disputing parties to reach a mutually acceptable settlement. The Act is complemented by the Civil Procedure Act (Cap. 21) and Order 46 of the Civil Procedure Rules, 2010, which empower courts to refer disputes to mediation at any stage of proceedings. The Nairobi Centre for International Arbitration (NCIA) administers mediation proceedings under its own Mediation Rules, and the Kenya Chartered Institute of Arbitrators (CIArb Kenya) maintains a roster of accredited mediators.

Mediation in Kenya is fundamentally different from arbitration conducted under the Arbitration Act No. 4 of 1995. A mediator does not impose a binding decision — the mediator supports communication, helps parties identify interests behind stated positions, and assists the parties to develop settlement options. Any agreement reached is binding only if reduced to writing and signed by the parties. An arbitral award, by contrast, is enforceable as a court judgment under Section 36 of the Arbitration Act without the parties' post-process consent.

The Judiciary of Kenya introduced court-annexed mediation as a permanent feature of civil litigation through the Mediation (Pilot Project) Rules, 2015 and subsequently through the Mediation Rules, 2020. Matters assigned to court-annexed mediation are referred to accredited mediators on the Mediation Accreditation Committee (MAC) roster maintained by the Chief Justice under the Mediation Act. Parties who successfully resolve a court-annexed mediation file a consent judgment, which is sealed by the court and enforceable as a judgment of the court.

The Constitution of Kenya 2010 under Article 159(2)(c) mandates alternative dispute resolution, including mediation, as a preferred mechanism for resolving disputes outside formal court processes. This constitutional mandate has accelerated the uptake of mediation across commercial, employment, family, land, and environmental disputes in Kenya.

A Mediation Agreement is distinct from a Settlement Agreement — the former governs the process, while the latter records the outcome. Where mediation is successful, the parties typically execute a separate Settlement Agreement or a consent order filed with the relevant court. The Mediation Agreement itself does not resolve the dispute; it creates the procedural infrastructure within which resolution is attempted. Forms-legal.com provides this Kenya Mediation Agreement template to help parties structure their mediation efficiently and protect their rights throughout the process.

The legal framework governing the Mediation Agreement (Kenya) in Kenya draws on several key statutes and regulatory bodies. Under the Companies Act No. 17 of 2015, the Registrar of Companies at the Office of the Attorney General maintains the register of Kenyan companies. Section 3 of the Law of Contract Act (Cap. 23) governs contractual obligations. The Competition Authority of Kenya (CAK) enforces the Competition Act No. 12 of 2010. The Kenya Revenue Authority (KRA) administers corporate tax under the Income Tax Act (Cap. 470). The High Court of Kenya has unlimited original jurisdiction under Article 165 of the Constitution of Kenya 2010. Parties executing a Mediation Agreement (Kenya) in Kenya should confirm the document reflects current law, including any amendments enacted since the original drafting date. The Mediation Act No. 9 of 2012 sets the foundational requirements.

A Kenya Mediation Agreement is required whenever two or more parties choose to resolve a dispute through supportd negotiation rather than litigation or arbitration, and several specific circumstances make a properly drafted agreement particularly important.

A Mediation Agreement is needed before commencing any private mediation — whether under the NCIA Mediation Rules, the CIArb Kenya Mediation Rules, or any other institutional rules. Without a written agreement, the authority of the mediator, the confidentiality of the process, and the binding effect of any settlement are uncertain.

A Mediation Agreement is required when a commercial contract contains a tiered dispute resolution clause that mandates mediation before arbitration or litigation. Many construction contracts under the Joint Building and Construction Council (JBCC) forms, engineering contracts under FIDIC conditions adopted in Kenya, and professional services contracts include such tiered clauses. Failure to attempt mediation before proceeding to arbitration or court may result in a stay of proceedings pending compliance with the dispute resolution clause.

A Mediation Agreement is necessary when parties to litigation in the High Court or the Commercial and Tax Division wish to refer their dispute to court-annexed mediation under the Mediation Rules, 2020. The agreement formalises the referral, identifies the accredited mediator selected from the MAC roster, and sets the session timetable.

A Mediation Agreement is needed in employment disputes where parties wish to attempt resolution before the Employment and Labour Relations Court (ELRC). The ELRC actively encourages pre-filing mediation under the Labour Relations Act No. 14 of 2007 and its own practice directions.

A Mediation Agreement is needed in land disputes referred under the Land Act No. 6 of 2012 or the National Land Commission Act No. 5 of 2012, where the National Land Commission (NLC) or Environment and Land Court (ELC) has directed the parties to attempt alternative dispute resolution before a full hearing.

A Mediation Agreement is required when parties to a family dispute — including matrimonial property, child custody, or succession matters — wish to attempt resolution under mediation before proceedings in the Family Division of the High Court or a magistrates court. The Children Act No. 29 of 2022 specifically promotes mediation for disputes affecting the welfare of children.

A valid Mediation Agreement in Kenya must contain the following essential elements to be enforceable and to protect all parties throughout the mediation process under the Mediation Act No. 9 of 2012.

Parties and Dispute Description: Full legal names and addresses of all disputing parties, each party's representative or advocate (if any), and a clear description of the dispute to be mediated. Where one party is a company, its Business Registration Service (BRS) registration number and authorised signatory details should be included. The dispute description determines the mediator's mandate and the scope of any settlement.

Mediator Appointment and Qualifications: The full name, professional qualifications, and accreditation details of the appointed mediator. Mediators in Kenya should hold accreditation from the Mediation Accreditation Committee (MAC) or be members of the Kenya Chartered Institute of Arbitrators (CIArb Kenya) or another recognised professional body. The agreement should confirm whether the mediator is appointed jointly or through an appointing authority such as the NCIA.

Mediator's Fees and Expenses: The mediator's hourly or daily rate, the basis on which fees are shared between the parties (typically equally), the payment schedule, and the arrangements for meeting mediation venue and administrative costs. Failure to address fees upfront frequently causes disputes that derail the mediation before it begins.

Confidentiality Obligations: All communications made during mediation — including position papers, without-prejudice offers, and the mediator's notes — are confidential and cannot be disclosed to third parties or produced in subsequent court or arbitration proceedings. Section 12 of the Mediation Act No. 9 of 2012 provides statutory protection for mediation communications. The agreement should reinforce this statutory protection and extend it to any experts or support staff attending sessions.

Mediation Process and Timetable: The number and duration of sessions, the venue (or agreement to conduct sessions via video conferencing), the procedure for exchange of position papers, and the deadline by which mediation will be concluded if no settlement is reached. A clear timetable prevents either party from using mediation as a delaying tactic.

Without-Prejudice Protection: An express statement that all offers, proposals, and admissions made during mediation are made on a without-prejudice basis and are not admissible in evidence in any subsequent proceedings. This protection is essential to encourage frank engagement and is codified in Section 12 of the Mediation Act.

Settlement Recording: The mechanism by which any settlement agreement will be recorded — whether as a written agreement signed by the parties, a consent order filed with the relevant court, or a deed of settlement. Where the mediation relates to pending litigation, the settlement agreement should be capable of being filed as a consent judgment under Order 46 of the Civil Procedure Rules, 2010.

Withdrawal and Termination: The circumstances in which either party or the mediator may withdraw from the mediation, the notice period for withdrawal, and the consequences for costs where a party withdraws unreasonably.

Governing Law and Jurisdiction: Confirmation that the Mediation Agreement and any settlement arising from it shall be governed by the laws of Kenya. Where the dispute relates to land, the Environment and Land Court (ELC) has jurisdiction under the Environment and Land Court Act No. 19 of 2011.

Forms-legal.com provides this Kenya Mediation Agreement template as a practical starting point for parties seeking to resolve disputes efficiently, confidentially, and cost-effectively in compliance with the Mediation Act No. 9 of 2012 and the constitutional mandate under Article 159(2)(c) of the Constitution of Kenya 2010.