Introduction
Humanity has existed in conflict for a very long time. Indeed, conflict is inextricable from humanity itself: Conflict within oneself, with actions, omissions, as well as opinions of other people. In the same vein, resolution of conflict dates back many centuries and takes various forms.
Some of the methods of dispute or conflict resolution include Litigation and Alternative Dispute Resolution (ADR) methods of Arbitration, Mediation, and Conciliation.
This paper will focus on the ADR methods of Mediation.
The first ADR was recorded in 1800 B.C. when mediation and arbitration were used to settle disputes between kingdoms in the ancient Middle East. The practice of ADR can be found in the Bushmen of the Kalihari Desert, the Hawaiian Islanders, the Yoruba of Nigeria, and other areas in 960 B.C. At that time, the practice was based on a wide range of religious faiths, beginning in the biblical wisdom of Solomon.[1]
Mediation: the Process and its benefits
Mediation is a process by which a neutral third party called a “mediator” helps people in conflict negotiate a mutually acceptable agreement.
A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem-solving techniques to enable the parties to reach their agreement.
The mediation process is a guided negotiation, helping the parties to communicate with each other, and exploring the issues which are of real importance to them, which often differ from their ‘rights’. The parties are encouraged to find ways to address their present and future needs, rather than dwelling upon who may have been right or wrong in the past.
Unlike Litigation or Arbitration, in Mediation, no one imposes a solution on a party. If all of the parties do not agree to the result, the dispute remains unresolved.[2]
As with other ADR methods, the mediation process is a confidential one. The parties, their lawyers, and the mediator cannot be compelled to provide information about the matters or issues discussed at the mediation session.
The focus of this paper is to provide an insight into addressing the interest of parties, their legal advisers, and the Mediator in achieving the end of the Mediation Process.
What do the Parties, Lawyers, and Mediators Really Want?
Parties
Whether the process is initiated by a party or a matter is referred to mediation from the courts, most parties in mediation are usually at a loss as to what the process would do for them. They typically come in believing that the Mediator is an arbiter who would access their cases and determine who is in the right or wrong as the case may be.
The true position is that parties have the power and should come with the desire to seek an amicable resolution among themselves. No dispute is indeed devoid of a resolution; however, the outcome of any dispute is dependent on the disposition of the parties to the dispute and their understanding of the overall benefits of the Mediation Process.
Mediation gives parties much more control over the way their dispute or difference(s) is/are dealt with and over the outcome.[3] It is referred to as a party-driven process because the parties hold a significant chunk of power in settling their dispute.
The Mediator
The role of a Mediator is to impartially guide the discussion toward a resolution that would be ameliorative even if slightly beneficial to each party. The mediator helps to create a safe environment where the parties can discuss issues openly and respectfully.[4] The ultimate goal is to allow parties to pick up from where they left off with no bad blood.
The Lawyers
The role of the parties’ counsel is chiefly to assist their clients in understanding the mediation process and guiding them to ensure they accord the process the respect it deserves. They are responsible for ensuring the attendance of their clients at mediation sessions and embracing the mediation process in its entirety.
It is the writer’s view that most of the challenges faced by the parties’ lawyers stem from a misunderstanding of the process and its aim.
The need for Parties’ lawyers to ensure they are duly compensated for the different roles they find themselves playing in the party-led mediation process, where they wait on their client to decide the course of the dispute, compared to what they are used in litigation where they speak for the parties. This may create anxiety in the minds of the lawyers and lead to an aversion to the mediation process.
The importance of the role of counsel in a mediation process cannot be overemphasized. In practice, parties have been unable to reach an amicable settlement because either one or both is heavily reliant on the guidance of their counsel, who in turn had a negative approach to the mediation process. Meanwhile, in some other situations, the impact of the advice of counsel had proved to have a huge influence on the settlement of the dispute.
Counsel whose clients prefer mediation as a method of settling their dispute, or who are referred from the court should seek to understand their role in the mediation process and take it seriously. Adequate remuneration for their service should be discussed with the parties and ought not to be a deterrent to the process.
Conclusion
It is understood that even the courts align with the goal of mediation and would refer cases to mediation where such cases can be mediated, to relieve the workload of the court and enable parties the opportunity to take charge of the settlement of their disputes in a timely and cost-effective manner.
Parties should be encouraged to embrace the mediation process which essentially gives them the power they require as well as a voice in the determination of their dispute with the assistance of a professional. They are also encouraged to include an appropriate dispute resolution clause in their agreements, where appropriate.
It is hoped that counsel to parties in mediation would appreciate their pivotal role and rise to the occasion of taking up the responsibility of steering their clients towards possible resolution.
Ultimately, in mediation, the party is king and accordingly ranked highest. The process itself focuses on the parties and they are always encouraged to lead.
In Lagos State, persons who are interested in settling their dispute utilizing mediation can access the Lagos Multi-Door Courthouse (LMDC)[5] through their counsel or walk into the LMDC at the High Court of Lagos State, TBS,[6] or the High Court in Ikeja.
By: Adenike Obisan
LL.M, MCIArb, Notary Public, Sanctions Specialist, and Accredited Mediator
[1] https://www.lawyersnjurists.com/article/discuss-history-goals-alternative-dispute-resolution
[2] https://ama.asn.au/australian-mediation
[3] https://ama.asn.au/australian-mediation
[4] https://ama.asn.au/australian-mediation; see also Article 8 of the Practice Direction on Mediation Procedure LMDC Practice Direction on Mediation Procedure
[5] The Lagos Multi-Door Courthouse (LMDC) was established on June 11, 2002 as a public private partnership with the High Court of Justice, Lagos State and the Negotiation and Conflict Management Group (NCMG), a non-profit private organization. It is the first court-connected Alternative Dispute Resolution Centre in Africa.
[6] The LMDC is temporarily using the TBS rather than the High Court at Igbosere pending the conclusion of the refurbishment of the latter destroyed following the ENDSARS protect in 2020.