Chapter 4

Comparative study

Table of Contents
4.1 South Africa...............................................................................................................................2
4.1.1 Legal framework for the practice of non-advocate mediators in South Africa..................3
4.1.1.1The South African mediation rules...............................................................................3
4.1.1.2 Appointment and replacement of the mediator............................................................3
4.1.1.3 Representation..............................................................................................................4
4.1.1.4 Challenges facing mediation advocacy standards for non-advocate mediators in
South Africa.............................................................................................................................5
4.2 Malaysia.....................................................................................................................................5
4.2.1 Legal framework for the practice of non-advocate mediators in Malaysia........................6
4.2.1.2 Rules of court mediation 2012.....................................................................................6
4.2.1.3 Practice directions no. 5 of 2010..................................................................................7
4.2.1.4 Rules for court assisted mediation 2011.......................................................................8
4.2.1.5 Challenges facing mediation advocacy standards for non-advocate mediators in
Malaysia...................................................................................................................................8
4.3 Uganda.......................................................................................................................................9
4.3.1 Legal framework for the practice of non-advocate mediators in Uganda.........................10
4.3.1.2 Mediation rules 2013..................................................................................................10
4.4 Singapore.................................................................................................................................11
4.4.1 Legal framework for the practice of non-advocate mediators in Singapore.....................12
4.4.1.1 Supreme Court of judicature act (rules of the court)..................................................12
4.5 Conclusion...............................................................................................................................13
4.1 South Africa
In the year 2011, there was an access to justice meeting that was held in South Africa with the

aim of ensuring that there was expeditious and effective access to justice and also to try and look

for means through which the general public would access justice other than from the courts. It is

from this conference that court annexed mediation was introduced in South Africa. With the

proposition from the conference, the South African judiciary begun by enacting the voluntary

court annexed mediation rules for the magistrate’s courts.1 The mediation rules demanded that

mediation shall be conducted by those who were certified as mediators and it is important to note

that legal knowledge was not a requirement for mediation practice as set out in the rules.

To ensure effective mediation practice, the government later set up an advisory body whose

mandate was to ensure that the rules that had been created by the judiciary were implemented

effectively and additionally the body was to ensure that the mediation standards were of good

quality.2 The mediators accreditation was to be conducted by the advisory body constituted. 3 It’s

worth noting that the government of South Africa went ahead to collaborate with the academic

institutions to help in achieving the standards that were expected from the rules by expressing to

the institutions the expected training standards. The government of South Africa made this

training approach to ensure that all the mediators had an equal chance to benefit from the

mediation system by ensuring that there was equal level of competence. This greatly helped the

non-advocate mediators since an improvement on the training curriculum meant that the

knowledge and competence of the non-advocate mediators on basic legal and mediation matters

would be greatly boosted. For ease of implementation of the mediation advocacy rules and

1
Department of justice, republic of South Africa, “Amendment of rules regulating the conduct of the proceedings of
the magistrates courts of south Africa. “ available at http://www.justice.gov.za/legislation/notices/2014/2014-03-18-
gg37448_rg10151_gon183-rules-mc.pdf
2
Boulle, Laurence, and Allan Rycrof. "Mediation: principles, process, practice." JS Afr. L. (1998): 167.
3
Department of justice, republic of south Africa’’ court annexed mediation, questions and answers’’
standards, the government of South Africa picked few experienced mediators that were to help

the courts in implementing the court annexed mediation. They were to also help other mediators

to keep up to the rules of practice so as to ensure high standards mediation practice, this was

majorly implemented in the Gauteng province within the state.

4.1.1 Legal framework for the practice of non-advocate mediators in South Africa
4.1.1.1The South African mediation rules
The South African court annexed mediation system can be said to be one of the most progressive

when it comes to the practice of the non-advocate mediators. This is due to the manner in which

the rules of practice have been drafted. The rules as they are create an opportunity for all the

practitioners of the mediation process to benefit immensely without a sense of discrimination

among themselves.4 The major issue that affects the non-advocate mediators is the access to

opportunities in the Kenyan context where the judicial officer has the discretion on who to

appoint as a mediator. The South African mediation practice rules with regard to how matters

can reach the mediation process and the general conduct of the mediation process provides for

various procedures to be undertaken that greatly advocates for party autonomy which favors the

practice of non-advocate mediators.5 Major among their legal provisions that favor the practice

of non-advocate mediators include;

4.1.1.2 Appointment and replacement of the mediator

This procedure from the South African mediation rules greatly favors the practice of the non-

advocate mediators in terms of the access to opportunities. The rules elaborate that the

submission of a dispute to mediation in terms of court annexed mediation rules is on voluntary

basis in terms of choosing a mediator and the rules do not make any provision for compulsion.

4
Rwelamila, P. M. D. "Construction mediation in South Africa." In Mediation in the Construction Industry, pp. 135-
146. Routledge, 2010.
5
Morris, Rosalind C. "Mediation, the political task: between language and violence in contemporary South
Africa." Current Anthropology 58, no. S15 (2017): S123-S134.
This means that the parties are at liberty to choose who they want to help them as a mediator.

Unlike in Kenya where the mediator is appointed by the court, South Africa relies majorly on

party autonomy and therefore when the parties feel that they can access the mediation process

even before or after the litigation process then they can do so out of their own will. This also

helps in availing a lot of matters to the mediation process hence creating more opportunities for

all the mediators and in the end achieving the end goal of justice. Section 3(1) of the mediation

rules of South Africa clearly states that the parties may jointly designate a mediator and

replacement of the same, additionally the rules state that where the parties fail to appoint a

mediator then the mediator shall be appointed by a neutral responsible body for the same, but

even in all that, the concerns of the parties and their best choices shall be considered. This clearly

creates a level field for both the advocate and the non-advocate mediators to thrive.6

4.1.1.3 Representation
Section 5 of the rules that talks about representation states that a person shall attend mediation in

person or each party may be represented by a person chosen by it. 7 The rules go ahead and state

that a person may be represented by a lawyer but only if agreed by both the parties but as a

matter of general practice, an individual won’t be represented by an external lawyer. 8 This is

very important in trying to protect the non-advocate mediator’s rights and position of practice in

the mediation process. Such a provision is important as it avoids the scenario where there is a

transplant of the legal system into the mediation system which makes it hard for the practice of

non-advocate mediators. The South African mediation rules therefore present an ample practice

environment for the non-advocate mediators.9

6
Mediation rules, AFSA, Section 3(1)
7
Ibid, section 5,
8
Shillinger, Kurt, ed. Africa's Peacemaker? Lessons from South African Conflict Mediation. Jacana Media, 2009.
9
Odendaal, Andries. "Modelling mediation: evolving approaches to mediation in South Africa." Track Two:
Constructive Approaches to Community and Political Conflict 7, no. 1 (1998).
4.1.1.4 Challenges facing mediation advocacy standards for non-advocate mediators in
South Africa
The main challenge that faces the South African mediation process in relation to the non-

advocate mediators is the issue relating to submission of a claim to the mediation process. The

rules state that before litigation an individual may voluntarily refer a claim to the court annexed

mediation process in the subordinate courts. This poses a challenge in the sense that the matters

that arise in the superior courts may not be subject to mediation. In Kenya the complex matters

from the high court may expose the mediators to more complex issues hence enabling them to be

able to aid the delivery of justice even in the complex matters. The mediation rules as they exist

in South Africa deny the non-advocate mediators and other mediators the opportunity to interact

with complex matters so as to gain the ability and experience to aid the superior courts in

disposal of the matters through alternative dispute resolution.

4.2 Malaysia
Malaysia has a rich history regarding the mediation advocacy standards that traces its roots to the

17th century.10 During this period the mediation practitioners were the elderly in the society and

those of high social status in the society. They were considered best suited to perform the role

due to the wisdom and experience they possessed in handling various matters in the society. 11 At

the end of the 20th century there was rapid growth in the mediation practice in Malaysia. 12 The

standards of practice were greatly improved and the mediation process fully incorporated into the

courts. Just like the Kenyan case, mediation was meant to reduce the backlog of cases that was

an impediment towards the delivery of justice. 13 The mediation rules through its legal framework

created an ample environment for the practice of the non-advocate mediators. There was equal
10
Hickling, RH 1987, Malaysia law; an introduction to the concept of law in Malaysia, professional law books
publishers.
11
Alwi abdul wahab; court annexed and judge led mediation in civil cases; the Malaysian experience; a thesis
submitted in total fulfillment of the requirements for the degree of doctor of philosophy
12
Cecil Abraham, alternative dispute resolution 20, Asian bus. L. rev (1998)
13
Aniza damis. Go mediate, mediation may be ordered to clear cases, new times straight Malaysia. (June 18 2007)
standing and access to opportunities between the non-advocate and the advocate mediators. In

the year 2010 there was enactment of the mediation practice directions no 5 of 2010. 14 These

directions had the aim of ensuring that there was implementation of the court annexed mediation

process in the courts.in an effort to implement the mediation process in the courts several

legislations were enacted ad its worth to mention that the rules enacted majorly favored the

practice of non-advocate mediators.

4.2.1 Legal framework for the practice of non-advocate mediators in Malaysia

4.2.1.2 Rules of court mediation 2012
The rules that relate to the pretrial case management states that in exercising its duty, then the

court is supposed to review the matter for consideration if it’s best handled through mediation. It

is further clear that the parties are supposed to provide any information that may aid in the

resolution of the dispute. The court then just recommends and the decision is within the province

of the parties to decide. They are at liberty to agree on a mediator. 15 This provision on its face

value creates equal opportunities for the practice of mediation. If the discretion to choose a

mediator is left to the parties then there is less likelihood that there would be discrimination

against the non-advocate mediators. Even though Malaysia does not have an express legal

framework on the standards of practice for the non-advocate mediators, its laws such as this

contain provisions that greatly promote the smooth practice of the non-advocate mediators

4.2.1.3 Practice directions no. 5 of 2010

These directions were adopted in Malaysia so to as to include alternative dispute resolution in the

lengthy trial process. It’s important to note that the parties are free to choose any means that will

help in the resolving of the dispute.16 The judiciary may request the parties to refer the matter to

14
Cheong Yeow and Tie Hee; court annexed mediation in Malaysia, what the future holds for. University of
Bolognia law review vol 1 of 2016
15
Rules of court 2012, order 34 rule 2(2) c
16
Clause 2.1 mediation practice directions
mediation and a key aspect of this guideline is that the parties themselves choose a mediator that

they are both comfortable with.17 It’s not the power of the judicial officer to impose a mediator to

them. This mediator can be a judge or a qualified mediator. 18 This guidelines are key in

improving the practice standards of the non-advocate mediators in the sense that the parties have

the autonomy that is necessary for the equal access to the opportunities. If the power is with the

judicial officer to choose who is to mediate a certain matter then there is the probability that they

will choose those who they feel is best suited to handle certain matters. In a case such as

Malaysia where there is a level practice field for both the advocate and non-advocate mediators,

it’s worth being incorporated in the Kenyan mediation rules. Additionally the inclusion of

judicial officers in the mediation process is a huge step towards attaining the aims of the

mediation practice. This is due to the fact that when judicial officers are involved in the

mediation process then they are likely to impart the process with knowledge on how to best solve

the matters. This will be very gainful for the non-advocate mediators as they will get the

opportunity to learn from the judicial officers. More so in cases where there are legal issues that

arise.

4.2.1.4 Rules for court assisted mediation 2011

These rules were introduced into the Malaysian judicial system to ensure that there was general

fairness in the process of mediation. Mediation being a process that is handled by the advocate

and non-advocate mediators then there is likelihood that there will be power imbalances and

17
Ibid, clause 2.2
18
Ibid , annexure 3
therefore the rules came in to create an equilibrium. 19 The rules achieved this by outlining the

roles of a mediator in the mediation process. This helps the non-advocate mediators in knowing

what they are exactly supposed to do. It creates an aim for the mediators and therefore those that

aren’t able to meet this aim are able to go for the career development courses or learn from

others.

The rules also provide for the voluntary nature of the process in all aspects. There is no provision

in the rules that provide for any chance to use force. This voluntary aspect basically means that

the entire process shall be voluntary, including the appointment of mediators shall be at the

choice and will of the parties. When one observes and analyses this provision then they get to

realize it’s progressive nature and that it’s worth replacing the Kenyan status quo where the

judicial officer has the power to appoint a mediator even if a party opposes the mediator, they

may have less to do due to the court fear. The Malaysian model helps in the expeditious disposal

of cases and in the end delivering justice to the general public.20

4.2.1.5 Challenges facing mediation advocacy standards for non-advocate mediators in

Malaysia
Despite the fact that the mediation practice in Malaysia has grown over time, it is still struggling

with the lack of a uniform standards system with regard to the private and public mediators. This

goes to the core of mediation ethics which varies significantly in the different areas. This creates

a situation where the judicial system may run the risk of having a huge discrepancy in terms of

the qualification of the mediators. This greatly affects the non-advocate mediators in the sense

that they would be less considered for the private mediation practice as those with legal

19
Rules for court annexed mediation. available at
(https://judiciary.kehakiman.gov.my/portals/media/others/Rules_for_Court_Assisted_Mediation.pdf )
20
Long title; mediation act 2012
knowledge are considered best suited to handle the matters relating to legal knowledge and

general mediation.

Another challenge that can be noted from the Malaysian mediation rules is their general nature.

Even though they contain provisions that greatly favor the practice of the non-advocate

mediators, they are so general to an extend that they leave loopholes through which one can act

against the best interest of the non-advocate mediators and still get a justification for it. There is

the need to have a sense of precision and particularity in the rules that will help the thriving of

the non-advocate mediators.

4.3 Uganda
The Ugandan mediation process is more or less like the Kenyan system save for the fact that the

Ugandan mediation rules are a bit more progressive and the provisions to a greater extend

provide for an ample opportunity for the growth of the non-advocate mediators. The Ugandan

constitution acknowledges that in the dispute resolution process, the courts are to take the

reconciliation approach. This means that restorative justice is greatly advocated for by the

Ugandan constitution.21 The civil disputes in Uganda are to be directly referred to mediation in

an attempt to reduce the backlog of cases and make the mediation part of dispute resolution more

active. The cost of the mediation process are catered for individually but where and individual

can show that they unable to pay then they can be excused.22

4.3.1 Legal framework for the practice of non-advocate mediators in Uganda

4.3.1.2 Mediation rules 2013
Under the Ugandan mediation rules, a party upon agreeing to refer a matter to mediation, they

can in consultation with their lawyer choose a mediator from a pool of mediators that is provided

by the courts. It is my considered opinion that this is a progressive provision of the rules in the
21
Article 126, constitution of the republic of Uganda
22
Rule 14(2) mediation rules 2013
sense that it advocates for party autonomy. The provision creates a situation whereby there is an

equal footing for both the advocate and the non-advocate mediators. The mediators registered by

the court are both the advocate and the non-advocate mediators and therefore one may choose

any of them. This is slightly different from the Kenyan scene whereby still the court after

providing a pool of mediators, it has the opportunity to choose a mediator for the parties. This in

some way may affect the non-advocate mediators where some judicial officers might have

preferences. The Ugandan mediation rules have solved that conundrum through party autonomy.

Additionally, the role of the registrar in the Ugandan mediation rules is quite elaborate in the

sense that there is a provision that allows the mediators to report any issue that they might find

unfair in their practice. This can be done by the parties or other mediators. This in my view

creates dispute resolution mechanism that helps to prevent a scenario whereby the non-advocate

mediators are discriminated or undermined by the advocate mediators.

The rules also outline the guidelines within which the mediators are supposed to operate within,

this is key as it establishes the limits of practice by stating what is expected of a mediator. This

favors the non-advocate mediators in the sense that there is no transplant of the litigation system

into the mediation process. This is very important since in a case where there is importation of

the litigation system into the mediation system then there will be great challenges for the non-

advocate mediators due to the lack of the key techniques and legal knowledge to maneuver such

a process. The guidelines for practice in the Ugandan mediation rules therefore creates a basic

level playing field for all the practitioners of the mediation process.

4.4 Singapore
Singapore is best known for being a benchmark state for Kenya when it comes to matters

economy. It is also worth noting that the country has greatly invested in the alternative dispute
resolution mechanism and mediation to be specific. The growth of mediation in Singapore traces

its roots from way back in the 1990s. This is when court annexed mediation was established and

even a mediation center was established by the country to ensure that there was private

mediation practice. This led to the enactment of various legislation which a keen analysis of the

provisions shows the strides the country has taken in ensuring that there is fair practice with

regards to the non-advocate mediators. Most matters handled relate to the family law division

and even there exists a specific registry for the practice of mediation relating to family matters

where children are involved.23

The rules provide for the referral of all the civil matters to the mediation process before

litigation. This is aimed at creating a justice system that is founded on restorative justice. 24 The

Singapore mediation practice introduces a very good concept that creates the mediation process

achieve its aims. This relates to the voluntary mediators. That mediators can volunteer to be

registered by the court and help in handling of certain matters. It’s my opinion that this removes

the money minded aspect of the mediation process. This will favor the non-advocate mediators

as there won’t be discrimination against them by those who feel they are more entitled to gain

from the mediation process by virtue of being more qualified. This will also help attract the

competent and the qualified into the field to be able to compete with the volunteers hence

making the non-advocate mediators improve their mediations standards by seeking more

qualification so as to fit in the field.25

23
The Hwee Hwee; mediation practice in ASEAN: the Singapore experience
24
Clause 35(9); state courts practice directions. Available at :
https://www.statecourts.gov.sg/cws/Resources/Documents/Master%20PDs%20-%20effective%20PD%206%20of
%202019.pdf
25
State courts Singapore, mediation process, available at:
https://www.statecourts.gov.sg/cws/Mediation_ADR/Pages/The-Mediation-Process.aspx
4.4.1 Legal framework for the practice of non-advocate mediators in Singapore
4.4.1.1 Supreme Court of judicature act (rules of the court)
Order 34A rule 1 forms the basis for the mediation advocacy standards in Singapore in relation

to non-advocate mediators. The order states that the state courts on their own motion at any point

of hearing may call parties to appear before it so as to subject the matter through the alternative

dispute resolution mechanism in this case being the mediation process. 26 The order further states

that the court has to confirm whether the parties have complied with the registrars directions. The

provision establishes what can be termed as party autonomy. This is whereby the parties on their

own volition take up the mediation process. The courts have no business in interfering with the

process and therefore the parties choose the mediators they wish. This creates equal access to the

opportunities. Additionally the courts have to ensure that the mediators are competent enough to

handle the matters in question. This means that the mediators are suited to handle that which they

can handle best. It’s my considered opinion that this creates a harmonious working relationship

between the advocate and the non-advocate mediators in the sense that each of the factions

handle what they can deal with best and therefore no collision with regard to matters

competence.

Oder 108 rule 3 is also important in trying to improve the mediation advocacy standards of the

non-advocate mediators.27 This provision provides that parties have to agree with the court as to

whether the matter before it can be dealt with by the mediation process. One of the challenges

facing the non-advocate mediators is the unfettered discretion of judicial officers to refer matters

to mediation. This provision in the Singapore rules cures this by the fact that parties to the

dispute have to agree whether a matter can be handled through mediation. This helps prevents

26
Supreme Court of judicature act (rules of the court) order 34A rule 1
27
Supreme Court of judicature act (rules of the court) order 108 rule 3
the referral of complex legal matters with serious legal questions to the mediation process which

starts raising questions on the competence of the non-advocate mediators hence creating some

form of an upper hand to the advocate mediators. This is a progressive provision that is worth

adopting in the Kenyan rules to help cure the unfettered discretion of judicial officers.

4.5 Conclusion
One of the major objective of this research is to review the best practices for mediation advocacy

standards in Kenya in relation to non-advocate mediators and to make proposals drawn from

comparative sturdy. Consequently, the above chapter has made comparative study among South

Africa, Malaysia, Uganda and Singapore. The research has made recommendations on the

identified gaps in the Kenyan mediation practice rules in relation to non-advocate mediators to

facilitate amendments where necessary.

List of reading materials

1. Department of justice, republic of South Africa, “Amendment of rules regulating the conduct
of the proceedings of the magistrates courts of south Africa. “ available at
http://www.justice.gov.za/legislation/notices/2014/2014-03-18-gg37448_rg10151_gon183-rules-
mc.pdf

2. Boulle, Laurence, and Allan Rycrof. "Mediation: principles, process, practice." JS Afr.
L. (1998): 167.

3. Department of justice, republic of South Africa’’ court annexed mediation, questions and
answers’’

4. Rwelamila, P. M. D. "Construction mediation in South Africa." In Mediation in the

Construction Industry, pp. 135-146. Routledge, 2010.

5. Morris, Rosalind C. "Mediation, the political task: between language and violence in
contemporary South Africa." Current Anthropology 58, no. S15 (2017): S123-S134.
6. Aniza damis. Go mediate, mediation may be ordered to clear cases, new times straight
Malaysia. (June 18 2007)

7. Cheong Yeow and Tie Hee; court annexed mediation in Malaysia, what the future holds for.
University of Bolognia law review vol 1 of 2016

8. Rules of court 2012

9. State courts Singapore, mediation process, available at:

https://www.statecourts.gov.sg/cws/Mediation_ADR/Pages/The-Mediation-Process.aspx

10. Supreme Court of judicature act (rules of the court)

11. The Hwee Hwee; mediation practice in ASEAN: the Singapore experience

12. Clause 35(9); state courts practice directions. Available at:

https://www.statecourts.gov.sg/cws/Resources/Documents/Master%20PDs%20-%20effective
%20PD%206%20of%202019.pdf