For many years, child custody disputes have been filled with emotions, lengthy court battles, and financial strain.
However, an increasing number of parents are turning to mediation as a more amicable, efficient, and cost-effective alternative to litigation in court.
Fanya Mambo Kinuthia, a lawyer and accredited mediator, has been at the forefront of this shift, helping families navigate custody agreements without stepping into a courtroom.
Mr Kinuthia, who initially trained in law at the Catholic University of Eastern Africa, veered away from traditional litigation after realising that the court system was overwhelmed.
“There are more than 1.8 million cases in court. Why do we need to add more there? I found a way to help people resolve their disputes out of court, and I am happy with the career path that I chose,” he told BD LIfe.
Over the past decade, Mr Kinuthia has noticed a significant increase in child custody cases brought to mediation.
“There are a lot of people realising that they do not necessarily have to go through a court process to agree on how they are going to raise their children. It’s cheaper, it’s more confidential and friendlier. The cost of mediation would be a third of what you would have to pay for litigation,” he says.
In putting up a case for mediation, Mr Kinuthia says it offers several advantages over litigation, especially in sensitive cases involving children. It is quicker and allows parents to take control of their disputes rather than leaving decisions to a judge.
“In the dispute, the judge knows the least about the issue, but he will make a decision that will be binding on all of you. Mediation takes the dispute back to the people who know it best and allows them to come up with a solution for themselves. The people bind themselves on terms that they think are reasonable,” he explains.
He adds: “Mediators guide the conversation and help the parties agree. The mediator’s opinion is useless in a mediation session but his professionalism is in guiding the parties towards harmoniously agreeing. Once they do, the agreement is reduced into writing and filed in court. When you file a mediation settlement agreement in court, it carries the weight of a judgment.”
How does it work? Mediation begins when one parent approaches a mediator, who then contacts the other parent to seek agreement on resolving the dispute outside of court.
“Sessions can take place physically or virtually, depending on the level of conflict between the parties. Sometimes it’s too toxic, so we do virtual.”
During the sessions, discussions revolve around key aspects of the child’s welfare.
“Who provides food? Who provides shelter? Who provides medical care? We separate emotions from the actual needs of the child. If the parties agree, the settlement is signed, filed in court, and becomes legally binding,” Mr Kinuthia says.
Mr Kinuthia says that unlike litigation, which can drag on in court for months or even years, mediation tends to be incredibly swift.
“With good temperament and cooperation, a dispute can be resolved in an hour, reduced into writing, and filed in court the same day. I have had disputes brought to me from the courts that were 24 years old and even 30 years old, and some were resolved in four sittings,” he notes.
Despite its advantages, mediation is not without challenges.
“In disputes involving children, sometimes one parent weaponises the child to manipulate the other parent for financial gain.
‘I know you’re a man, you love your daughter a lot so I take away your daughter, any time you want to see her, I tell you, for you to see her, send me money. Unfortunately, many times we use children, but if we allow children to be children and not use them as a tool to fight the other spouse, then mediation becomes amazing. Mediation relies on the goodwill of the parties. If one refuses to cooperate, there is no enforcement mechanism like in litigation.”
Not all children-related cases can be mediated.
“Child abuse, defilement, murder, and serious criminal cases must go to court. Cases involving constitutional interpretation can also not be subjected to mediation. Other matters that can be dealt with under mediation are employment, labour, family, civil, commercial and succession matters. Some petty criminal offences can also be settled through mediation,” he says, clarifying that mediation cannot grant a divorce.
“Divorce must be granted by the court but mediation can help you discuss the division of matrimonial property.”
Mr Kinuthia adds that societal perception is another hindrance to mediation. “Many people believe disputes must be settled in court. We need to change that culture and educate people on the benefits of mediation.”
He notes that mediation offers a win-win solution for parents and, most importantly, prioritises the well-being of children, so its uptake in custody disputes is only set to continue growing.
Mr Kinuthia believes that mediation needs better funding, more training institutions, and integration into the educational curriculum to thrive.
“We need to allocate resources specifically for mediation, invest in training, and make mediation a unit of study across different professions. The judiciary relies on the sole budget that they get from the exchequer to also pay the court-accredited mediators who help them resolve their disputes. There needs to be proper allocation of funds to pay mediators,” he says.
Mr Kinuthia is also the founder of the Kilimani Mediation Centre, which offers mediation training for those interested in becoming mediators.
“It’s called the 40-hour training. You start on Monday, and by Friday, you’re a mediator. The process of accreditation by the judiciary takes about six months and involves mentorship and interviews before full certification is granted.
As Kenya’s legal system continues to struggle with case backlogs, mediation is proving to be an invaluable tool in dispute resolution.
During the 2nd Annual Mediation Summit in 2024, Chief Justice Martha Koome released data detailing that approximately Sh52.1 billion has been released back to the economy as a result of a swift resolution of cases through the court-annexed mediation.
She said: “A total of 16,770 matters out of 18,162 referred to Court Annexed Mediation had been resolved, translating to a 92.3 per cent conclusion rate. The settlement rate has been improving yearly. The last financial year 2022/23 saw a settlement rate of 51.2 percent, while in the current year 2023/24, the settlement rate is at 54.98 percent. In the current financial year, the average case running days is at 73 days.”
