Paper presented at the Section of Business Law, NBA Annual Conference June 2013.
By Osarieme Ezekiel ©
Mediation is changing the way we perceive disputes. As more and more people view conflicts as problems to be solved rather than victories to be won. Legal and business communities are beginning to tilt towards mediation as a means of dispute resolution.
After a long history of moving disputants further and further away from each other and making their exchanges more procedural and formal, the tide is actually turning. Increasingly, mediation is becoming an integral part of resolving disputes. It is an effective process of resolving disputes in several areas including labour, commercial, family, interpersonal, community, organizational, environment and public service, be they complex or multi-party. The issue is not about winning but about resolving the conflict and how. The process of mediation is totally confidential and it works.
When it comes to the issue of bread and butter for lawyers, mediation does not seem to feature as a form of resolving disputes. It is worth asking why and exploring how this can change.
Being ‘afraid’/Being ‘opposed’ to Mediation
It is one thing to be afraid of something and another to be opposed to it. To be afraid or fearful of mediation means to be apprehensive, reluctant or anxious about it or to avoid it because one is afraid. Oftentimes when we are afraid of something, we are opposed to it. Meanwhile, this fear simply warrants a need to know, in order to make informed choices.
What is Mediation?
Mediation is defined as “a process by which an impartial third party assists people in a dispute to explore and understand their differences and if possible, to settle them.”
Basically, mediation can be described as facilitated negotiation through a third party neutral called a mediator.
Mediation is the fastest growing ADR method. Unlike litigation, it provides a forum through which parties can resolve their own disputes with the help of a neutral third party.
However, although mediation is a popular concept and the experience is satisfactory, the use of mediation in Nigeria is still somewhat patchy, with some States being more receptive in its use than others. The Lagos State Government has blazed the trail with its justice reform initiatives. The Lagos Multi-Door Courthouse is steadily making an impact through its annual Settlement Week initiative, while the Citizens Mediation Centres in Lagos and Enugu States have a high level of patronage. Furthermore, the new Lagos State Civil Procedure Rules recognizes mediation as a dispute resolution track.
The way the courts and the legal profession respond to mediation and other collaborative conflict resolution processes, will determine the extent to which they participate in what ordinarily should be a birthing process rather than a titanic struggle.
Who then is afraid of Mediation?
- Micro/Individuals (Lawyers, Parties)
- Macro/Institutions (Business Community, etc.)
Reasons why People Fear or are opposed to Mediation
- The Lawyer Culture
Lawyers are trained and used to the traditional, adversarial pattern of dealing with disputes, with them thinking “I must win at all cost” and actually attempting to do so. Like law, their orientation as lawyers, is hard to change. This is what they know. On the other hand, mediation offers a new approach which they are not used to.
The legal education offers minimal opportunity if any, to learn skills beyond advocacy skills, adjudicatory process, the law. Problem-solving skills, negotiation, mediation are hardly taught. This makes lawyers deficient in the use of other dispute resolution methods and more inclined towards litigation.
Mediation for example, requires a new set of skills, which can be acquired. Such lawyers need to learn for example how to listen, empathize, acknowledge and validate emotions, to feel comfortable mediating.
- Law-based/rights perception
The adjudicative process is based on law and rights. It has no business with non-monetary considerations like apology, gathering information on the interests of the parties or promoting mutual respect, which are some of the things mediation ensures. These are unfamiliar to the litigation lawyer.
- Process Change
Change is never easy and often brings about fear of making mistakes and receiving negative feedback from colleagues and clients. Lawyers reject mediation because it is a completely different process from what they are used to.
The litigation lawyer is suspicious of the mediation process because s/he is used to a process where a judge rules and does not know what to expect in mediation, where it is the parties not even the mediator, that agree on an outcome.
- Reduced Compensation/Fees
These lawyers can actually increase their fee income and client base if they use mediation appropriately or even become mediators. They can expand their practice to include ‘dispute resolution’.
- Preference for court justice
People (party, client, lawyer, individuals) do not understand the mediation process and are simply used to the adversarial process. ‘Litigation I know but what is this?’ They do not know what to expect.
The desire for ‘punishment’ also makes mediation an unwelcome process for lawyers and event clients, because judgment in litigation is seen as such.
- The unprepared party
When a party is unprepared and is not really familiar with the issues of the dispute or has not done any homework. This is because in mediation, you need to be prepared, to negotiate successfully, since the parties arrive at their decisions themselves.
- The uninformed – Lack of information
When an individual (party, lawyer or client) has no information whatsoever about mediation or has never heard of it. Basically clients are often reluctant to seek mediation on their own. Even lawyers hardly refer their clients to mediation. The suggestion of a collaborative approach like mediation, to resolving their dispute is sometimes met with stiff resistance. For example they say, “Are you saying we have a weak case?” or “Whose side are you on?” The common belief is that you only negotiate settlement if your case is weak or you do not have a good case and are scared of losing in court.
This fear arises from a distrust of the process because they do not understand it or know what to expect people like to act within their knowledge- and experience zone. Accordingly, they fear that their interest will not be fully protected or that agreements reached cannot be enforced.
- When Parties have a bad Case
A party may have a bad case, know this and simply want to use the flaws in our justice/legal system to ensure delayed justice for the other party. For example a Debtor/Customer of a bank that has defaulted in payment and because he does not want the bank to sell his/her property used as security, runs to court and does everything to ensure that the process is unduly prolonged. Or the Tenant, who has defaulted in paying rent, does not want to be ejected, yet won’t pay rent but runs to court to try and buy time. Discussing the dispute with the mediator in a private meeting, will throw up the strengths and weaknesses of the case and the reality of what could happen even in litigation.
- The supposed weaker Party
The party among the disputants that perceives him/herself to be the weaker or less powerful, feels threatened and intimidated by the prospect of sitting down to discuss with the other party. They feel that someone sitting around the mediation table has more power than them (e.g. that the other party is prominent) and that it will affect their ability to self-determine.
There is the erroneous belief that if you take away the procedural protection provided by the adversarial system, those with more power, knowledge or clout will take advantage of and intimidate the weaker party. This is not allowed to happen in mediation because mediators work hard to ensure fairness all through, particularly procedural fairness. If there is a power imbalance in mediation, the mediator must recognize and address it skillfully. The supposedly ‘powerful’ party is given just as much time to speak or make his/her point as the other party.
- Fear of further harm
Fear by a party of further harm or intimidation from hostile parties (e.g. in a divorce mediation or certain domestic violence mediation), if they come to mediation.
In litigation, each side wants to be in control, using power to try to control, manipulate or influence. In mediation, the parties jointly share control/power. The individuals do not understand how this can be and so are threatened.
In litigation, lawyers are used to being in control. From their pleadings to presenting their arguments etc. and clients defer to their knowledge. Mediation on the other hand, gives control to the parties. The outcome is not based on the expertise of the lawyers but on interests and the parties determine the outcome. As a result, lawyers resist mediation.
- Culture imbalance
Parties whose cultures place barriers on them avoid mediation. These can be identified in terms of gender and culture. For example, a female from some Northern parts of the country, who cannot sit round a table with a male, look him in the eye, talk more of addressing him.
- Public Policy
Limiting or prohibiting mediation in some cases may be due to public policy implications. Under the Ghana 2010 ADR Act for example, mediation or ADR is restricted in environmental disputes; in Ethiopia, the government or its agencies are prohibited from mediating with private parties. In the case of Nigeria, it is unlikely that election matters will lend themselves to mediation or any ADR process, as individuals cannot be allowed to determine the fate of independent voters or vitiate statutory provisions.
- Experiencing an unskilled Mediator
A negative encounter with an unskilled mediator that abuses the confidentiality rule, is biased and partial. This can be a put-off to lawyers or disputants who have encountered them, making mediation undesirable.
No need to Fear Mediation
With mediation, there is no need to fear. Why? Because mediation is a process that ensures procedural fairness, which enables parties feel that justice has been done and can be seen to be done. It has a myriad of benefits:
i. The Value of Expression
Mediation allows parties express their pent up emotions to each other. The value of being able to express anger, fear, frustration, hate cannot be discountenanced. When we listen to people who have hurt or offended us, very often our hearts are touched and perspectives shift. Anger, fear and narrow perspectives usually get in the way of useful discussions. Mediation allows parties express their bottled up emotions and resentments but does not let them remain at that level. They can probably for once really listen to and hear each other. And once this emotional blockade is done with, there is a sense of satisfaction/release and parties are ready to move forward.
Mediation gives the parties an opportunity to talk about important issues in a safe and confidential environment. In Child Custody cases for example, it helps improve communication between families and social workers.
iii. Impartial, Neutral and Safe
The mediator is neutral and has an ethical duty to assist each party by providing expertise that ensures parties reach voluntary settlement without coercion, threats or intimidation. When Parties come to mediation, they are usually stuck because they are positional and continue to see things from their one-sided view. They need a new perspective for this situation to change and this is where the mediator comes in. The mediator helps the parties talk to each other, listen to each other, come up with solutions and resolve their dispute by themselves.
iv. Power Balance
It is said that shared power grows power, while control is the antithesis. Mediation ensures power balance through the skills of the mediator, so no side can control the process and parties can self-determine. For example: “Jim, I have four items here that you wish to discuss when we get back together with bully. Are you willing to discuss these items with bully?” “Yes?” “Good.” “Let’s talk about how that conversation might go. If you say XYZ, how do you think bully will respond? Let’s role-play possible responses together: how would you respond if bully says….”
If a mediator invites one party to tell their story first during the opening session, s/he must explain why, so the other party does not feel there is bias. Likewise during the private meetings, the mediator is obliged to spend an equal amount of time with both parties, or explain in advance, the likelihood of spending more time with one party over the other (e.g. because of inquiries) and the reason why. That way, neither party feels threatened.
Mediation improves compromise between the parties by helping them consider the strengths as well as weaknesses of their positions, identify their interests and then guides them to a satisfactory outcome. For example, in employment mediation, it can emerge that one party no longer wants re-instatement and is more interested in securing a reasonable pension instead. The mediator may already know from discussions during the private meetings, that the employer is open to considering this. The mediator can by using skills, explore with each party, the various possible settlements that can lead to a satisfactory outcome for everyone, which neither side would have found easy to broach, for fear of losing face or looking weak.
vi. Ethics in Mediation
Mediators have ethical obligations. A mediator is a neutral third party and the ethical rules and principles of mediation prescribe that s/he must uphold the tenets of confidentiality, neutrality, impartiality and fairness. Generally, mediators are immune from liability for their professional conduct or services, unless an ethical breach occurs, like breaking the confidentiality requirement.
Furthermore, choosing a mediator is very important in mediation and should be based on experience, skills as well as subject matter competence and the choice must be acceptable to both parties.
Parties sometimes know what will work best for them. Therefore in mediation, the parties with the help of the mediator, generate useful and creative options which the parties can agree to and settle for.
viii. Skills of a Mediator
Listening skills, questioning skills, reality-testing, identifying interests and ensuring that parties have enough power to self-determine, are some of the skills that are regularly deployed by a skilled mediator in mediation. They are critical to the process and go a long way towards helping parties reach mutually satisfactory outcomes.
ix. Personal Responsibility and Self Determination
We like to pass blame, particularly regarding the outcome of a case. However, this evaporates in mediation because parties are in control of the process and reach solutions by themselves. A cornerstone of the mediation process is the protection of self-determination. Parties should be able to self-determine their future. Therefore when parties settle, there is a sense of personal responsibility and satisfaction between them, which is why they abide by the outcomes.
First of all, the parties must both want to mediate, to reach an agreement and either of them can walk away at any time. Even when the mediation is imposed by court, the parties are not bound to resolve the dispute. There is no pressure on the parties or any compulsion to resolve.
The mediator listens to both sides, upholding and emphasising confidentiality. This means s/he only divulges only what parties agree should be revealed to one another.
Agreements reached through mediation are usually documented and signed by all the parties. They can be filed in court as consent judgment between the parties and can be enforced against them.
How can you overcome this Fear?
- Use of accredited and properly trained mediators
- Get proper training
- Experiencing mediation continuously with a skilled mediator
- Be open to change
- Have a problem-solving mindset
- Understand the role of lawyers in mediation
- Continuous Professional Development (CPD)
Mediation challenges the lawyer who sees justice solely through the eye of litigation. However, there is no need to be afraid of mediation. The reality is that mediation and justice are intimately linked, not opposites. Lawyers in 21st Century Nigeria should make more effort to deploy this form of alternative dispute resolution, to enhance their clients’ experience of the Nigerian justice system. These skills can be learned and can be easily transferred. Lawyers do not need to resist mediation because it is a process different from the adjudicative one they are used to or because it gives them less control or requires a new set of skills.
Recognising mediation the way the new Lagos State Civil Procedure Rules has done will probably help lawyers see the benefit in mediation and realise that it enhances their existing skills in adjudication.
Mediation adds value by enhancing justice, from the way clients are treated, to ensuring that strengths, weaknesses and interests of the parties are taken into consideration and enduring settlements are reached.
It is important to note that lawyers have a role to play in mediation although they do not speak for their clients and the mediator should explain their role during the opening session.
Mediation is a process that ensures procedural fairness and enables parties feel that justice has been done and can be seen to be done.