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Advantages And Disadvantages Of The Pilot Project Rules

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Advantages of the pilot project rules
• The mediation rules put a strict caveat that matters must be settled within a time frame of 60 day s..
• The rules ensure privacy and confidentiality since all communication during mediation are deemed to be confidential and shall not be admissible in evidence. Mediation is also deemed to be a confidential process as compared to litigation since parties can conduct proceedings in private. Confidentiality is essential for mediation to be effective. In the court-annexed mediation program in Kenya, confidentiality requirements are taken into account in the Mediation (Pilot Project) Rules, 2015. It is provided that all communication during mediation, including the mediator’s notes, shall be deemed to be confidential and shall not be deemed to be admissible in evidence in any current or subsequent litigation or proceedings. Further, neither the mediator nor any person present or appearing at a mediation session may be summoned, compelled
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There is a palpable tension between the courts’ desire to exert control over the parties’ conduct in mediation and the need for parties to exercise the fullest level of autonomy within mediation. It has been astutely highlighted that ‘the higher the level of participation required, the greater the coercion by forcing a party to present its case in a manner not of its choosing.’ In other words, excessive control by the courts should be avoided, since it will compromise the parties’ right of self-determination. While it may be argued that lenient standards would not penalize parties who are blatantly uncooperative during the mediation, it is equally, if not more, important, that the parties should be free to conduct themselves as they see fit during the mediation.
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