- January 8, 2021
- Posted by: Precious David
- Category: Blog
PAPER PRESENTED BY LOUIS BROWN OGBEIFUN (CHMC (NIG); CEDR ACCREDITED MED, (U.K.); MTI ACCREDITED MEDIATOR AND TRAINER IN WORKPLACE CONFLICTS (USA).) TO A WORKSHOP ON ALTERNATIVE DISPUTE RESOLUTION (ADR) FOR MAGISTRATES’ OF THE FCT. ORGANIZED BY THE ABUJA MULTI-DOOR COURTHOUSE, HIGH COURT OF THE FCT IN CONJUNCTION WITH THE SECURITY JUSTICE AND GROWTH PROGRAMME OF THE BRITISH COUNCIL. AT ROCKVIEW HOTEL; ON 26TH NOVEMBER, 2008
Let me sincerely thank the Multi-Door Courthouse, High Court of the Federal Capital Territory (FCT), Abuja and the British Council for this singular honour and privilege, that has made it possible for me to stand before eminent jurists, not as an accused person but as one who would be leading discussions on the concept of mediation and its relevance in modern day courts for the next two and half hours. I say discussion because I am not going to be talking on something new to you. You are all mediators in your own right. All we would be doing this morning is the robbing of minds on how to make the practice of mediation more robust at the Abuja Multi-Door Courthouse.
This workshop cannot come at a better time when we have so much pressure on the Judiciary because of the rights imposed by the constitution on the ongoing nurturing of democracy in Nigeria. So, I congratulate the organizers of this workshop for their support and their foresight.
Introduction
According to Covey (2004:10); people share so much in common, yet are magnificently different. They think differently; they have different and sometimes competing values, motivations, and objectives. Conflicts normally arise out of these differences. This definition presupposes that conflict is inherent in any form of human relations because we have values, genetics, physiology, mental disposition to issues, and approach to issues; our reasons for going into a relationship, satisfaction of needs, our goals and objectives, our expectation of others and the way we perceive things. These conflicts arise because of the changes that occur in the process of interaction.
There must be an interdependent relationship for a conflict to occur, and when two or more people come together to progress the course of this relationship, conflict becomes inevitable. The relationship could be formal or informal, such as in marriage, workplace, business, politics, meetings, market, family, crime, health, educational institutions, and diplomacy.
(Hornby 2001:239) defines conflict as a “situation in which people, groups, or countries are involved in a serious disagreement.” Conflict cannot be said to be good or bad. It is the way we manage conflict that matters. If well managed, it could become a motivator that will spur us to achieve greater results in our daily endeavors. If mismanaged, it could develop into a crisis.
Conflicts can be resolved using adjudication, violence, self-help, arbitration, litigation, or mediation. The State might also resort to the use of force, coercion, and intimidation to suppress conflicts. Arbitration, violence, self-help, and litigation are adversarial in nature because judgments are given to depicting a win-lose situation or the other party disarmed through the use of brute force by the stronger party. In the process, relationships are broken, and the vanquished being unable to vent their pent-up feelings, wait patiently for the appropriate time to revenge. This is where the use of mediation, which stresses a win-win option, holds the ace for a lasting solution to conflicts.
In Nigeria, Mediation is not a new concept. Before the advent of British rule, our forebears and traditional rulers effectively used mediation to resolve family and communal conflicts. Mediation was then employed based on the use of power, hunches, history, and experience. In modern times, traditional rulers, religious leaders, and organizations still use mediation as an out-of-court settlement process. This is also largely based on experience, the organizational rule books, norms, and traditions.
The mediation process we are going to be discussing in the next few hours is a structured and systematized method of resolving disputes. It involves the practitioners’ training and certification to enable them to practice in the formal sector like the courts and in the informal sector as experts. Mediators are trained to understand human psychology and the reasons behind some actions that take place at mediation, which hitherto were hidden at the beginning from both parties.
Legal Framework for the use of Alternative Dispute Resolution (ADR) in Nigeria.
Role of Lawyers
Lawyers as gatekeepers in the temple of justice also support ADR as enshrined in their Rules of Professional Conduct (RPC) Rule 15 (3), (d) C states, “in the representation of his client, a lawyer shall not fail to intimate his client of the ADR options before resorting to litigation.” Failure to do this shall be punishable under Rule 55 (1), which states that if a lawyer acts in contravention of the rules, or fails to perform the roles imposed by any of the rules, that lawyer shall be guilty of professional a misconduct liable to punishment for as provided for by the Legal professional’s act 1975”
Role of the Judiciary
FCT Civil Procedure Rules: The Judiciary has also been of immense support in the promotion of the use of the ADR. For instance, he High Court of the Federal Capital Territory (FCT) Civil Procedure Rules (2004) order 17 states, “A Court or Judge, with the consent of the parties may encourage settlement of any matter (s) before it, by either-
• Arbitration
• Conciliation
• Mediation
• Any other lawfully recognized method of dispute resolution
The Federal High Court Act 1973
Reconciliation in civil and criminal cases.
Section 17 of this Act states, “cases in any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.” This Act provides an entry point in the application of ADR principles in criminal cases. The section provides that in any proceedings in court, the court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof. This can be deployed victim’s offender mediation, plea bargaining.
The Concept of Mediation
According to Honeyman and Yawanarajah (2003), mediation is a “process in which third-party neutral assists in resolving a dispute between two or more other parties. It is a non-adversarial approach to conflict resolution. The role of the Mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet the interests or needs of all relevant parties to resolve the conflict”. 3
The U.S., equal Opportunity Commission says of mediation, Mediation is a fair and efficient process to help resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement…..”
Ogunyanwo (2005:27) defines mediation as “a voluntary (unless ordered by a court), non-binding, private dispute resolution process in which a neutral person, the Mediator, helps the parties try to reach a negotiated settlement.”
The Centre for Effective Dispute Resolution (CEDR); (2004:26) defines ” mediation as a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.”
I would want to define mediation as an Alternative Dispute Resolution (ADR) method, conducted in private, in a confidential manner, facilitated by a third-party neutral that assists the disputants to reach their own proffered solutions to the issues in contention; with a voluntary settlement agreement signed by the parties upon the successful closure of the dispute.
From the above definitions, it might be misconstrued that any agreement reached through the mediation process is not enforceable because the process is voluntary. This will not adequately represent the various authors’ views because once the disputants voluntarily append their signatures or thumbprints to a settlement agreement, it becomes binding. It behooves them to respect and carry out the obligations spelled out in the settlement agreement, which they were not coerced to sign.
Elements in the definitions
There are parties to the dispute
Alternative dispute resolution process
Voluntarism.
Conducted in private.
A confidential process.
Flexible process
Fair and efficient process.
Facilitation of communication between the parties.
Involvement of a third-party neutral
Active involvement of the Mediator in the process
Interests and needs.
Process owned and controlled by the parties
Signed negotiated agreement/settlement.
Non-adversarial.
Conflict, the reaction to it by one of the parties, and the final resolution could be likened to a submarine operation. The missiles oozing out from above the ocean’s surface to enemy positions is carried out by substantial military hardware called the submarine, which lies somewhere in the belly of the ocean. You can only detect the submarine position using a special instrument. The commander-in-chief who usually approves the submarine deployment and the eventual strike is out of sight and could be thousands of nautical miles away from the point of action. Not until that power source is assuaged and both parties agree on their own, or a third party mediates for a cease-fire, the raining of the missiles on the enemy territory will continue.
The process and structure of conflicts are very complex. What underlies the issues presented by the parties is much more than meets the eye. Beneath the problems brought to the table are hidden interests, emotions, power play, traits, attitudes, and needs. It is like the iceberg whose crest depicts an infinitesimal aspect of the bundle of complexities that lies beneath. Therefore, a mediator has to be trained to have a helicopter view of all the Mediation issues and effectively meet the challenges of mediation.
Mediation is the tool that helps bring disputing parties together, discovers the aforementioned complexities, helps to explore the root cause(s) of disputes, brings to the surface the hidden interests and needs of the disputants and at the end, restore the broken relationship of the parties to the pre-dispute level.
For you to be successful in mediation, you need to put into perspectives the followings:
1. Try to unravel the root cause(s) of conflict.
2. You need to get to the root cause of conflicts for you to be able to assist the parties in resolving it. Detect the authority calling the shots.
3. You need to determine who is calling the shots (authority) and detect the power play for you to help the parties move closer to settlement.
4. Determine the interests and needs of the parties.
5. You need to detect and determine the needs and the interests of both parties, which in most cases are hidden beneath what they come to mediation with.
6. Deploy the appropriate tools.
7. You need to deploy the right tool (method) to make sense out of the mediation process. Choosing the wrong approach might ruin any chances of settlement.
8. Deploy the right conflict resolver.
The resolution of conflicts, no matter how simple, requires tact, understanding, and patience. You need to get the right person who can aggregate all the above factors to enable the parties to benefit from the mediation process on a win-win basis.
Who is a Mediator?
A Mediator is one trained to use his/her knowledge and experience to facilitate dialogue between disputing parties with the sole aim of reaching a settlement agreement. The Mediator is not a Judge or an Arbitrator. The Mediator is interested in the relationship with and between the parties; manages the process, and helps the parties concentrate on the dispute’s content. He/she acts as a coach to the parties. While doing this, the Mediator must in all circumstances, maintain his/her neutrality and be mindful of the confidentiality of the process.
Roles of an effective mediator.
The role of a Mediator is a sensitive one. The effective Mediator has three domains of importance in the mediation process, and these encompass the entire mediation process, namely:
1. Pre-Mediation.
2. Intra-Mediation.
3. Post-Mediation.
Pre- Mediation:
The parties
Develops rapport with the parties.
Gets the brief from both parties
Arranges to meet with the parties
Speaks to the parties on the negotiation history and their concerns
Clarifies the role of the Mediator.
The Process:
Develops and agrees to framework by both parties.
Fixes date, time venue, rooms, etc.
Obtains agreements on the terms of mediation.
Checks that someone with authority will be available on the table.
Discusses documentation and exchange of documentation between the parties
Arranges for the arrival of the parties
Appearance of the Mediator
Appears neat but not too flamboyant or colourful.
Confident.
Ensures that the flip charts and all materials to be used are carefully arranged
appears relaxed, alert and confident
Conveys believability, energy and purpose
Arranges for refreshments
On hand to welcome the parties
.Intra facilitated negotiation:
Sets the scene and sets the tone.
Ensures that the physical environment is conducive.
Ensures that seats are arranged in a manner that will enhance good interaction.
Quickly motivates the parties to early interaction.
Opens the mediation well.
Determines the order of presentations, the use of caucusing and joint meetings.
Informs the parties of progress.
Sets the ground rules.
Alert on tension, cultural and ethical issues.
Radiates confidence.
Builds trust.
Uses humour effectively.
Uses effective communication strategy:
Listens attentively.
Paraphrases
Uses open ended questions.
Deals with verbal and nonverbal cues.
Establishes Mediator’s authourity.
Reinforces confidentiality.
Maintains time balance between the parties.
Alert on issues of power imbalance.
Motivates the parties by accepting and rewarding valued contributions.
Allows parties to express emotions.
Supports the parties equally.
Shows empathy.
Not judgmental.
Use silence effectively.
Maintains his role as a process Manager
Explores and identifies interest based issues and priorities.
Directs the focus of parties to interest based issues and away from the problems.
Invents strategies to overcome deadlock.
Helps parties to analyze risks and benefits non-settlement.
Summarizes points of agreement.
Helps parties with the writing of the settlement agreement. If they have representations, allow their Lawyers to draft the agreement.
Ensures both parties sign a settlement agreement.
Post- mediation process:
Maintains a working relationship with parties.
Acknowledge their inputs and ascribe the success to them.
Makes follow-up contact with parties.
Encourages parties to keep in touch.
Where there is a deadlock, let them continue to explore mediatory channels.
Uses of Mediation:
International disputes.
Social disputes.
Medical disputes.
Civil cases.
Commercial disputes.
Labour and industrial relations’ disputes.
Communal disputes
Educational disputes.
Workplace disputes.
Factors that aids mediation:
1. Power balance.
Where one of the parties has legal representation, and the other does not, mediation becomes an uphill task. Boulle (2005) believes that it will be unfair to mediate in an instance where one of the parties does not have legal representation. Though a major issue, I strongly believe that a mediator should take note of the power imbalance and skillfully guide the parties through the process.
2. Parties voluntarily opting for mediation.
Mediation achieves a higher rate of settlement where the parties opted for mediation before going to the law courts.
3. Trust and confidence of the parties in the Mediator.
Once the parties trust and have absolute confidence in the Mediator, the process runs smoothly with fewer hiccups.
4. Complexity of the dispute.
The less complicated and integrative the issues are, the easier and better for mediation. A one-issue dispute in mediation will be easier to handle than that which involves multiple issues.
5. Capability and competence of the Mediator.
The capabilities and competence of the Mediator are very critical factors in the mediation process. A less experienced mediator may find it seriously challenging to get involved in a multi-issues dispute as often times experienced in commercial.
Phases of Mediation.
There is no hard and fast rule guiding the phases of mediation. Since it is a flexible system, many authors have designed the phases used overtime in their mediation work. Generally, there are five phases of mediation, namely,
1. The preparation phase.
2. The opening phase.
3. Exploration phase.
4. Bargaining phase
5. Closing phase.
The preparation phase.
This is the planning phase, where the parties agree on a mediator, meeting with the parties, taking of briefs, informing the parties of what the process entails, parties agree on the date, venue and signing of the initial mediation commitment or contract.
The opening phase.
This phase involves introducing the parties and the Mediator, setting ground rules, re-echoing the Mediator and the parties’ roles and responsibilities, opening statements, and stressing the Mediator’s neutrality and the confidentiality clause. The phase begins with the opening statements by the parties and they are advised to give it their best.
The exploration phase.
Through the agreed structure, the Mediator tries to help the parties understand the issues, which in this case are the needs, interests, problems, and issues. Once these are discerned, the Mediator strategically helps the parties to focus on interest-based needs.
This is the most trying phase for the Mediator. He could decide to hold several private and joint meetings. He watches the parties for body language, does reality testing, paraphrases, uses open-ended questions to encourage the parties to talk more, reinforces the confidentiality clause, and summarizes what each party says for clarity. Be alerted of the tension around the mediation room, watch out for emotions, and allow the parties to vent out their feelings. Deploy your listening skill to the fullest. Seek first to be understood than to understand. Do not interrupt their presentations.
The bargaining phase.
Kanakrieh (2007) identifies five types and manners of bargaining that takes place in mediation as follow:
1. Bargaining concerning rights: The essential consideration in focus here is about legal
2. Reconciliation bargaining: The objective of this is the bringing together of the disputants for the sole
3. Distributive bargaining: The consideration here is to resolve the issues of fixed resources in the dispute effectively
4. Bargaining on the basis of interest: This method focuses on the interests of the parties outside the disputes of rights.
5. Integrated bargaining: This method deals with a whole lot of issues. This includes interests, rights, resources, and the real issue in dispute.
It is the Mediator’s duties to develop the strategic plan to deal with any of the types of bargaining highlighted above.
Elements of Effective Collective Bargaining Process.
Takes place within a social framework devoid of technical and legal encumbrances.
Parties agree on a date, venue, and time of negotiation.
Recognizes the bargaining partners as equal and therefore allows bargaining on equal terms. Negotiates on all matters connected with disputes.
Flexibility.
Understanding the socio-economic implications of a deadlock.
Finding an equilibrium that will enhance face saving safety nets for both disputants.
Carrying out negotiation in an atmosphere devoid of harassment, threats and duress.
Bargaining honestly and transparently (good faith bargaining).
Good Faith Bargaining.
To bargain in good faith means that the parties will meet as agreed with the Mediator and negotiate with open mind over the issues in dispute.
To bargain in good faith, the disputants are encouraged to do the following:-
1. Approach bargaining with open mind.
2. Follow the ground rules, which will enhance the prospect of a negotiable settlement.
3. Regarding all items within the bargaining scope as rightly negotiable and problems that should be solved bilaterally.
4. Discuss demands freely, fully, and justify negative reactions with reasons.
5. Considers compromise proposals in an effort to find a mutually satisfactory basis for agreement or settlement.
6. Give information that will enable the other party to bargain responsibly.
Generally, the adoption of good-faith bargaining by disputants creates respect and mutual trust during negotiation, promoting a win-win outcome. In addition, it goes a long way to determine the course of a future relationship. It is a practical necessity, which helps both parties to move closer to their interests and needs.
Negotiation.
Nierenberg (1968) defines negotiation as a game, but a cooperative exercise, and builds a “need theory” to optimize it. This definition weighs its concept on Maslow’s hierarchy of needs. Nierenberg’s work presumes that a negotiator can decide to work against each level of her own or her opponent’s needs depending on her orientation and perhaps the specific goals to be achieved. On the other hand, Cohen believes that anything can be negotiated. He refers to the world as a giant negotiating table and recognizes three critical elements involved in the negotiation, namely: information, time, and power.
Negotiation is a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. It has often been used interchangeably with bargaining. In whatever context it is used, considering the need for future interaction between disputants and for the purpose of reaching a win-win outcome, it may be defined as “the building of a consensus in order to resolve a dispute between parties that are interdependent and that look forward to a future business interaction and cooperation.”
Challenges of negotiation
1. Needs.
2. Interests.
3. Time pressures.
4. Negotiation styles.
5. Skills of the negotiator and the disputants.
6. Power balance.
7. Information.
8. The negotiator’s goals and orientation.
For a successful negotiation to take place, certain conditions are necessary for the negotiation chain. These include:
Access to relevant information to deal with and participate in dialogue.
Will and commitment to engage in dialogue.
Respect for fundamental rights of freedom and the principles of bargaining.
Appropriate institutional support.
The parties must identify and agree on the issues in dispute.
The parties must admit that their interests, goals, and needs are not entirely incompatible.
They must recognize the need to co-operate in order to achieve the goals.
They should dwell on areas of mutual benefit.
Working towards an agreement will require both parties to remain on a platform that will accommodate both of them irrespective of the differences in opinion or class. They must see each other as equals and the following will also add value to the negotiation process.
A one-item dispute for negotiation is easier to deal with than many-items’ agenda. When negotiating on several issues, it is advisable not to sign off any agreed item until an agreement is reached on all issues. By this method, either party can allow a face-saving trade-off for a more holistic agreement in order to prevent a deadlock.
Negotiation Strategies.
Negotiators often adopt two strategies, namely:
Positional (competitive) negotiation strategy.
Principled (problem-solving) negotiation strategy.
The Positional or Competitive Negotiation Strategy.
This is the traditional negotiation strategy, and it is characterized by a winner-takes-all attitude in which each negotiator sets a minimum limit. According to Roger Fischer and William Ury, in Century Business, this winner-takes-all mentality may manifest in two ways: soft and hard.
The soft negotiator desires an amicable settlement, therefore, wants to avoid personal conflict, making concessions readily to reach an agreement.
The hard negotiator, on the other hand, is a bully. He adopts a strategy to wear out his opponent. The strategy most often is counter-productive as it ignites in the soft negotiator a spirit of competition. He rises to the challenge, and the effect is the inability of both parties to reach a negotiated agreement.
Key Characteristics.
Predetermined gains and setting of minimum limit.
Focuses on people.
Positions are entrenched on perceived best options.
Making justification for taking extreme positions.
Parties threaten and deploy unwholesome tactics to force agreement by the other party.
Staging walk outs and using bluffs as a tool.
Giving only when an offer is made.
Giving in bits and never conceding any large amount at a time.
Never pressured by time and prepared to remain at the negotiation table for as long as the other party is willing.
Psychologically wears off an opponent.
Positional bargainers engage in this strategy for various reasons, which include:
Preservation of reputations.
Reliance on constituent power base, e.g., the unions knowing that shutting down the refineries and crude oil platforms will bring management and or government to their knees.
Ego preservation.
Fear of hostility from constituents, e.g., union leaders may not concede any ground outside the mandate of congress because they may be impeached afterwards.
Mistrust.
Broken relationships.
Vengeance.
Refusal to grant any privileges to the other party outside recognized rights, e.g., unions may direct their members to refuse overtime jobs while management may refuse to grant union leaders time to travel for union engagements.
Incessant skirmishes.
Principled (problem solving) Negotiation Strategy.
The second strategy that has gained enormous acceptance as an alternative to the traditional strategy is the principled negotiation strategy. The “Getting to yes” by Fischer and Ury in the Harvard Negotiation Project in 1981 tends to have been the springboard upon which this strategy emerged.
The key characteristics are:
principles rather than positions guide negotiation
stressing problem-solving
objective standards as a basis for decision making
separating people from the problems
strengthening relationships
focusing on cooperation
efficient use of negotiating tools
win-win outcome
fair and open-minded presentation of issues
satisfactory outcomes
Fischer and Ury have the strong conviction that the adoption of a cooperative approach would remove inefficiencies associated with the traditional “positional” approach yet give both parties the satisfaction of having a win-win outcome without either side having a feeling of exploitation. This is possible because the approach allows the use of their Best Alternative to a Negotiated Agreement (BATNA) in reaching a mutually acceptable outcome.
The above does not suggest that deadlocks may not occur even when a principled negotiation approach is adopted. The Centre for Effective Dispute Resolution (CEDR) in appraising a possible deadlock option says, “In principled negotiation, negotiators seek to develop good relationships with the people on the other side and, if a deadlock occurs, they may reconsider their BATNA or involve a third party to help develop agreement on interests or provide objective standards for a fair settlement.”
Furthermore, CEDR believes that some competitive or positional elements are likely to be present even in the best-principled negotiation. There may be tensions between creating value and claiming value, and where negotiators work hard to extend the pie, there is still the question of who gets which slice.
The negotiation or bargaining phase helps to bring the parties closer to the settlement agreement. All the agreed terms in this phase are summarized for clarity and understanding of the parties.
Closing Phase.
This is the phase where one of three things may happen. The parties might settle and then proceed to sign an agreement, or the parties might fail to reach an agreement, or the parties might decide to adjourn for further hearing.
If the parties reached a settlement, the Mediator helps the parties write down the terms of settlement for them to sign. If they have legal representations, allow the lawyers to do it but devoid of technicalities. Once the agreement has been signed, then the Mediator should congratulate the parties for resolving the dispute themselves.
Where the parties refused to settle, thank them for the efforts and encourage them to continue to seek other ADR options but seriously counsel them to still be open to mediation.
Litigation and other forms of conflict resolution are adversarial and break relationships, but mediation facilitates the coming together of the disputants that were hitherto distanced by the dispute. This helps them to restore broken business relationships.
Advantages of Mediation.
1. It is voluntary.
It is not an imposed system. Parties voluntarily opt for mediation and might voluntarily opt out to participate process at any time during the proceedings. The voluntary nature is in the process and not the outcome. Once a settlement agreement is reached, the outcome becomes binding and an enforceable contract. However, if it is court connected or court annexed, the process becomes involuntary. If the parties settled, it outcome becomes a consent judgment. In mediation, the unwilling party may still frustrate the process and return to court. However, the court shall note the reasons for the failed process.
2. Saves time and money.
The system is quick, and mediation can take a matter of hours or days with a lesser cost of resources. This is a variant with protracted ligation and court-based civil cases that may take months or years.
3. It is flexible.
From the beginning to the end, the entire process is flexible and not bogged down by any form of bureaucracy. It helps to discover the real issues, and parties are free to opt-out of the process when they are no longer interested in the process for whatever reason
4. Non-adversarial.
Mediation ensures a win-win outcome for all the parties. This makes the parties happy at the end of the process.
5. It is fair and efficient.
The parties mutually agree on who their Mediator is and are the owners of the process. In addition, the method is open and cost-effective. Therefore the parties perceive the system as fair and efficient. In litigation and arbitration, the court has control over the entire process.
6. Parties design the framework.
The parties agree on a venue, time, parties to be present on mediation, who speaks on behalf of the disputants, when to present arguments, seat arrangements, etc. In litigation and arbitration, the parties are subjected to the dictates of the environment designed by the State or the Arbitrator.
7. Focuses on interests and not the problems.
Resolution of conflicts will largely depend on disputants’ underlying selfish interests in the purview of needs, desires, power, and rights, which the Mediator must use his competence to detect and deal with. The process helps the disputants overcome underlying emotions and by redirecting them to the real issues.
8. Cooperative, problem solving approach.
Promotes cooperation among the parties and involves them to generate workable options to the solution of the dispute realistically.
9. Futuristic.
The traditional systems of dispute resolution seek remediation and therefore concentrate on the past. In the alternative, mediation seeks to bridge the gap between the disputants to enable them to relate on a platform mutually agreed and helps look into the future benefits derived from their relationship.
10. Promotes communication.
The parties vent their feelings without restraints. The phases of mediation encourage them to discuss the issues without any structured format freely. Parties face themselves to negotiate their own outcomes.
11. Private and confidential.
Mediation is held in privacy, and proceedings are kept strictly confidential. It allows the parties to open up to the Mediator during private meetings with the assurance that only the information approved by either party will be revealed to the other. This helps to the preservation of the privacy and reputation of the parties.
12. Reduces power imbalance.
In mediation, everybody is equal, and the Mediator helps to maintain the balance of power.
13. Promotes a win-win outcome.
Parties that reach a settlement agreement leave the mediation room happier than they came in because there is a sense of no loser but winners.
14. Mends broken relationship.
In most instances, parties leave mediation room happier and could have their relationships restored to pre-dispute level.
Why would parties honour their settlement agreement?
The parties voluntarily submitted themselves to the mediation process (except if referred by the court, one of the parties may opt-out during the process and return to the court).
The parties both agreed on the framework.
The parties voluntarily took part in the whole process, made inputs into the terms of the settlement, and at the end, signed the settlement agreement.
Where it is court-referred, the settlement is duly registered as a consent judgment.
The role(s) of the Judiciary in the process of the deployment of mediation as an effective ADR method could be found in the words of Certilman “Decisiveness and willingness to use the authority of office may be the very traits which make judges effective dispute resolvers and administrators but they may also be anathema to mediation’s collaborative nature, where the buy-in of the parties is essential to success. Judges serving as mediators should be trained to leave their judicial demeanor in chambers and focus on the non-adjudicative nature of mediation. The use of coercive techniques will damage the public’s perception of the mediation process and should be eliminated.”
With the overflowing of court dockets, carrying over of cases that have spanned several years, and the destruction of business relationships, the need for the collaborative efforts of the Judiciary at making mediation the first line of choice before other forms of dispute resolution methods cannot be overemphasized. However, this cannot be achieved without the Judiciary’s buy-in, whose domain lies the discretion to determine which of the cases should be referred for mediation.
Reasons for the adoption of mediation in modern day court practice.
1. Judicial bureaucratic bottlenecks.
2. Delays in judicial processes.
3. Overloaded court dockets.
4. Increasing legal costs
5. Time wastage in litigation.
6. Frustration.
Relevance of Mediation in modern courts.
1. Court-annexed or Court-referred Mediation promotes enforceability of settlement agreement reached through mediation and increases the confidence of disputants in the mediation process.
Helps the courts to reduce court cases’ overload.
Saves the time and efforts of the Judiciary, thereby improving the turnaround time of cases in both civil and criminal cases.
Mediation on long-term basis ensures quicker dispensation of justice by the law courts.
Opens a new vista for practicing and young lawyers to diversify their specialization outside the traditional specialties.
Potential for many cases to be processed in a relatively short amount of time (Drake and Lewis).
Increasing the efficiency of case processing, improving the quality of justice, and improving judgment collection (Hadeen and Cov).
Conclusion.
Mediation as a tool used in resolving disputes is gaining wider acceptance all over the world and should be encouraged at all the levels of the Judiciary in Nigeria. Where and when it is appropriate, the judicial system has nothing to lose in adopting mediation as a first-line option in its approach to dispute settlement. Rather, its value in the administration of justice is of inestimable value. Let us be open to the use of mediation in a wider spectrum. This will allow our Judges to concentrate on more complex cases that really require their attention.
On the other hand, disputants and the public develop trust and confidence in Court-annexed or Court-referred Mediation because all those involved in the disputes believe that the entire process is still part of the court system. While the case undergoes mediation, the lawyers still keep their briefs, and no attendant risk is involved as parties can easily return to the court if there was a deadlock.
Mediation is quick at dispensing socio-economic justice and the restoration of broken relationships. It is the bride of ADR. Please, it is in your place as administrators of justice to marry it into the judicial system with love and open hearts. I can assure you with utmost certainty that you will not regret being a party to the enthronement of mediation as a frontline ADR mechanism.
The public is interested in the quick resolution of disputes by the courts and not the method(s) used. When the Judiciary can be used as a platform to substantially dispense off cases in time, reduce costs and efforts on litigation, especially in small matters, the public will see the entire judicial process as efficient and effective. Therefore, it is in our interest to ensure that this public trust and confidence are not misplaced. As Judicial officers, I urge you to kindly continue to encourage mediation no matter your personal or institutional opinions.
Lastly, I wish to state that CEDR (U.K.); MTI (USA); ICMC (Nigeria) have been the building blocks of the enrichment of this paper because of the studies I had done with them as renowned Mediation bodies.
Thank you for listening.
Notes.
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