Private mediation allows the parties to a dispute to choose their own neutral mediator and negotiate a settlement before the matter becomes more expensive or disruptive. It is voluntary, confidential and built around the parties’ timetable and their commercial or family relationship. This article explains how private mediation works in Kenya, what the agreement to mediate should cover, and how a settlement is documented and enforced.
Quick answer
In private mediation the parties appoint a mediator by agreement, record the scope, confidentiality, fees and authority to settle, and attend one or more sessions. The mediator manages the discussion but does not decide the dispute. If a settlement is reached, it is recorded in a written agreement that can be enforced as a contract. Private mediation can run before or alongside litigation or arbitration.
What private mediation is
Mediation is a structured negotiation assisted by a neutral third party. Private mediation means the process is arranged by the parties themselves rather than through a court referral. The parties choose the mediator, agree the procedure and control the outcome. The mediator’s role is to manage the discussion, test assumptions and help the parties find terms they can both accept.
The process is not a trial and does not produce a judgment. It is also not a substitute for legal advice: each party should understand its legal position and the value of the claim before the session, because a settlement accepted without that analysis may be worse than the dispute it ends.
When private mediation is useful
Private mediation suits contract, shareholder, property, insurance, family-business and workplace disputes where the parties want a solution they can shape themselves. It is particularly useful where a continuing relationship, confidentiality or a quick business decision matters. It can also narrow the issues even when the whole dispute does not settle.
Check the contract first. Many negotiated agreements now contain an escalation clause requiring senior representatives to meet, and sometimes to mediate, before proceedings are issued. The article on mediation and arbitration compared explains how the routes differ, and the article on commercial contract mediation covers the contract-dispute context in more detail.
The agreement to mediate
The agreement to mediate should be in writing and should cover the mediator’s appointment, the scope of the dispute, the fees, the venue or platform, the timetable, confidentiality, and who will attend with authority to settle. It should also say what happens if the mediation does not settle, including how the costs of the mediation are allocated.
Each party should bring a decision-maker, or a person with clear authority to agree a figure and the non-monetary terms. That authority should be recorded in advance, so that a deal can be concluded at the session rather than adjourned to a board meeting.
What happens in a session
The mediator usually opens with a joint session, explains the process and invites each party to summarise its position. The parties may then meet separately with the mediator, who carries messages and tests options. Well-prepared parties bring a chronology, a schedule of the claim and any counter-claim, the key documents and a realistic view of their alternatives if the dispute is not settled.
The session may produce a full settlement, a partial settlement or an agreed process for further negotiation. The mediator does not impose a decision, and a party is free to leave if the terms are not acceptable.
Confidentiality and without prejudice
Mediation depends on candour, so confidentiality terms matter. The agreement to mediate should state that the discussions and documents shared are confidential, and settlement discussions are commonly protected by the without prejudice principle, which prevents an offer made to settle from being used against the party that made it if the negotiation fails.
Confidentiality is not absolute. Fraud, threats, criminal conduct and disclosure required by law or regulation can fall outside it, and the position depends on the agreement and the applicable rules. Sensitive documents should be shared on terms recorded in advance, not assumed to be protected.
Documenting a settlement
A settlement should identify the parties, the obligations, the dates, the payment mechanics, the releases, the confidentiality terms and the consequences of default. Vague language about cooperating is not a settlement. Where the settlement affects property, company rights, security or ongoing commercial obligations, it should be reviewed before signature.
A private settlement is enforceable as a contract, and a party that fails to perform can be pursued as for any breach. Where the mediation runs alongside court proceedings, the settlement can be recorded with the court so that it is enforceable through the court process. The article on mediated settlement agreements explains how a settlement is made binding.
Private mediation compared with court-annexed mediation
| Point | Private mediation | Court-annexed mediation |
|---|---|---|
| Who arranges it | The parties, by agreement | The court, under its rules and referring order |
| Choice of mediator | The parties choose | Drawn from the court’s accredited panel |
| Timing | Before or during proceedings | After a case is filed and referred |
| Settlement | A contract between the parties | Can be adopted by the court and enforced as an order |
The two routes can also be combined: a private mediation may settle a case that is already before the court, and the settlement can then be recorded in the court process. The Judiciary publishes guidance on court-annexed mediation for cases that follow that route.
Preparing for the session and when to take advice
Preparation decides the quality of the session. Bring the contract and any variations, invoices and payment records, correspondence, any expert report, a chronology and a schedule of the figures in dispute. Agree the settlement range in advance and record the authority to settle.
Advice is worth taking where the dispute is substantial, where the settlement will affect property or company rights, where the other party is outside Kenya, or where a previous negotiation has failed. The firm’s arbitration and ADR practice advises on mediation strategy, preparation and settlement documentation.
Primary sources
- Judiciary of Kenya: Court Annexed Mediation, for the court-annexed mediation process and guidance.
- Civil Procedure (Court-Annexed Mediation) Rules, 2022, Kenya Law, for the framework that applies where a court refers a case to mediation.
- Law of Contract Act (Cap 23), Kenya Law, for the contract framework that governs a private settlement.
This article is general information, not legal advice.