MEDIATION

DEFINITIONS;

FIADJOE

Mediation is a consensual process in which a neutral third party helps

others to negotiate a solution to a problem. It is voluntary and mediator has no
power to make binding decisions for the disputants. He only uses certain
procedures, techniques and skills to help disputants to arrive at a resolution of
their dispute by agreement without adjudication. It is flexible. It is widely used
now in resolution of inter-personal relationships, in labour, management,
commercial, ethnic community, education and int’l disputers because of the deep
disaffection with the litigation alternative.

BOULLE & NESIC;

Mediation is a VOLUNTARY system in which a NEUTRAL mediator controls a

PROCESS but does not intervene in the CONTENT of a dispute and which leads to
CONSENSUAL outcomes for the parties.

Section 135 of Act 798 mediation is defined as a nonbinding process in

which the parties discuss their dispute with an impartial persons who assists them
to reach a resolution.

Fundamental features of mediation

general principles of mediation according to Brown and Marriott include :

 Neutrality and impartiality of mediator is important to whole process

 Nature of mediator’s authority – cannot impose a settlement on disputants.
He is only a facilitator whose role is to assist the disputants to settle their
differences through a negotiated agreement.
 Consensual resolution- only binding outcome is one with which all the
parties agree.
 Maximization of interests.
  Provision of secure environment which is conducive to discussion and
exploration of settlement options and possibilities.
 Offer of confidentiality
 Inability to offer independent advice to the parties because they are
responsible for their own decisions.
 Empowerment of the parties; parties make their own decisions with little
dependence on 3rd party advisers unlike in litigation where parties depend
on lawyers. However in commercial mediation, the companies may choose
to be represented by their lawyers.
 Maintenance of relationships

Mediation is faster, cheaper and more satisfying to the parties than litigation.

What mediation hopes to achieve- provides opportunity to achieve the ff;

 Vent feelings
 Clear up misunderstandings
 Determine underlying interests & concerns
 Find areas of agreement

Mediator’s authority.

 not a judge
 no power to render a judgment or award
 not a lawyer acting as advisor to one side
 a neutral or impartial third party
 unrestrained by evidentiary rules
 assists the parties to focus more on the true basis of their disputes
and on future remedies rather than on punishment or revenge

What mediator needs to learn to do (Rolf Kessel)

 not to be judgmental; not to impose his/her solns on others

 be a good listener
 a good communicator
  appreciate emotions
 to be impartial
 empathic
 flexible
 understand diverse mindsets
 maintain good conduct even under stress

Roles of a mediator

 Facilitator- keeps discussion moving by directing the conflict to become

impetus and by phrasing & rephrasing areas of possible agreement.
 Opener of communication channels when parties refuse to communicate.
 Transmitter & translator of information. Parties may be talking but not
‘listening’ or may be missing or be unaware of certain facts as a result or
parties may have a diff perception or meaning of some facts and it’s the
mediators duty to clear things up.
 Distinguishes positions from interests by getting parties to identify
underlying interests that influenced the position they’ve taken and address
them in the best possible way.
 Creates options in a creative way in order to directly or indirectly prevent
himself from imposing a soln on the parties.
 Agent of reality by aiding to increase each party’s awareness of the other’s
needs and helps to build a realistic framework within which they can access
costs & benefits of resolving the conflict.
 Convenor- establishes ground rules and creates a positive resolution
seeking atmosphere.
 Obtains closure- ensure closure on individual issues and final closure.
 Guards the mediation process by observing ethical standards on own part
(e.g. impartiality) and part of parties (civility)

THREE DIVERSE STYLES HAVE BEEN IDENTIFIED – by Edward Brunet & Charles
Craver
 1. Substance – Oriented Mediators (Evaluative)

2. Process – Oriented Mediators (Facilitative) – Information Centered

Mediation (ICM)

3. Relationship – Oriented (Transformative) Mediators

Substance Oriented Mediators; Norman Brand described a SUBSTANCE-

ORIENTED approach as a type of mediation where the mediator possesses
superior information gained through formal study, experience or both. They
consider the mediation analogous to a parent child relationship where they (the
parent) seek to identify the needs of the child (the parties) so they can tell them
what they should accept. They consider themselves ‘dealmakers’ who must decide
what is best for the parties. ( KOLB)

PROCESS – ORIENTED APPROACH; This approach is facilitative` – this category of

mediators believe that temporary impasses are the result of communication
breakdowns and/or unrealistic expectations. They work to reopen communication
channels and assist the parties to reevaluate the reasonableness of their positions.

RELATIONSHIP-ORIENTED (TRANSFORMATIVE) ; an approach designed to

transform disputants into relatively self-sufficient problem solvers.

Substance –oriented and process oriented mediators are particularly interested in

the resolution of the underlying disputes - - - relationship – oriented mediators are
PRIMARILY INTERESTED IN FUTURE PARTY RELATIONSHIPS.

Characteristics of the Facilitative –

  Assists parties with their communications and negotiations.
 Strategizes to help parties identify the issues in dispute
 understand their real needs and interests
 Formulate options for settlement

Classification of mediation

1. Rights- based mediation

Occurs where parties to a dispute want a mediator to provide them with an

independent assessment of the possible outcome of the case, if there is no
settlement at mediation. Mediator provides an assessment of the legal and
equitable rights of the parties. Parties can then choose to accept or reject or
modify the assessment provided. In such med, only a person with some real
expertise in the substantive area of the dispute may be chosen to provide the
assessment. Sometimes referred to as ‘muscle mediation’ because mediator can
use expertise to browbeat one party to change their position and adopt
mediator’s proposal. May be employed where 1 side believes the other has an
unrealistic ass of the outcome of the case & where that position could be
influenced by opinion of mediator. Lawyers adopt it where they believe their own
clients have an unrealistic assessment of their case and are intransigent.

2. Interests-based mediation

It is the commonest. It focuses on the underlying interests, goals and needs of the
parties, rather on the perceived outcome of the litigation. It is attributed to the
Harvard Negotiating Team. The mediator attempts to determine the interests
behind the positions adopted by the parties, encourages them to generate options
that satisfy those interests and help them choose their own solns. The mediator
controls the process of the mediation & assists the parties and their advisors to
resolve the substantive issues. He need not be an expert in the substantive areas
of the dispute. He is only to be a process expert who can leave the substantive
issues to the parties.

Commencement of mediation

 Agreement of parties
 Providing for the process in a mediation clause within an existing agreement
 Required by the law to attend a mediation session

It is reasonable to provide the terms and conditions in a mediation agreement,

where the parties voluntarily submit to mediation.

MEDIATION STAGES

 The Setting
Venue; there should be a main venue and another for caucus
Sitting arrangement; parties should be seated away from each other in case
of a heated argument.

• Introduction

- Orient the parties to the mediation process

- Instill trust

- Begin to obtain information about the dispute and the people involved

CONTENTS OF THE INTRODUCTION

1. Opening Statement

- Welcome the parties

- Introduction of self, parties and representatives, if any

- Commendation for deciding to mediate –Tell them about the benefits of

mediation (building trust and confidence in the mechanism)

- Partial Disclaimer

- Explanation of role of mediator & Goal of mediation; its voluntary nature

 - Explanation of the Process

(a) Confidentiality (builds trust)

Mediator will not divulge content of mediation outside the parties’

sessions. The mediator will not testify for or against either party in any
forum (Evidence Act) His Notes are only for keeping track of what is said
during sessions and it Will be destroyed at the end of the mediation
process.

(b) Explain that final agreement reached to be written down and signed by all
parties and mediator

(c) Procedures must be explained

- Set Ground Rules e.g. insist on Civility

- Caucus – explain purpose and that either party can request caucus

- Explain confidentiality of caucus

- Mediator’s Breaks

- Explain role of lawyers & clients

- QUESTIONS – about the process

 PARTIES TO SIGN AGREEMENT TO MEDIATE (especially in Court connected

mediations)

(d) Getting Started

- Begin with person who filed the complaint

3. VENTING

This is an advantage over the court room process. Mediator allows the
parties to vent or express their emotions. In court, it is known that the
court is not an emotive place and only deals with facts. so parties would
usually not be able to express their feelings.
 4. Determine the real parties to the issues – whether some others need to
be invited as parties

5. Abort Mediation for lack of commitment from parties

- Withdraw as mediator to protect your reputation and integrity

6.THE WRITTEN AGREEMENT

 Use plain language

 Identify people with full names

 Specify dates

 Specify method of payment

 Answer following possible questions about

- quantum; - time; - individuals

- price; - subject matter [i.e. specify how much; when; how;

who; what etc. etc.

• List each provision separately

• Omit any mention of blame, fault or guilt

• Do not involve Third Parties in the payment implementation (especially

yourself)

• Include the parties’ intentions

• Let the parties confirm that the settlement shall be in final settlement of
all claims

• Possibility of mediation for future disputes

• They (and their lawyers if present) must sign the agreement; with you as
witness.

CLOSURE
  Thank and congratulate the parties on their success and Distribute the
copies of the agreement to them. (They are to send copy to court; if court
connected.)

 Referral back to the Court

 Reminder of confidentiality of all matters disused

 Expectations of performance

STAGES OF MEDIATION

SUMMARY

 Introduction

 Parties’ initial statements

 Information gathering

 Problem identification & clarification

 Generation of options

 Selection of options

 Agreement Building

 CLOSURE

Powers of the mediator s. 74 of ADR Act

(1) He shall independently and impartially do everything necessary to help the

parties to satisfactorily resolve their dispute.
(2) He may conduct joint or separate meetings with the parties and make
suggestions to facilitate settlement.
(3) A mediator may where necessary and if the parties agree to pay the expenses,
obtain expert advice on a technical aspect of the dispute. .
(4) A mediator shall be guided by principles of objectivity, fairness and justice, and
shall give consideration to, among other things, the rights and obligations of the
parties, the usages of the trade concerned and the circumstances surrounding the
dispute, including any previous business practices between the parties.
(5) He may conduct the mediation proceedings in a manner that he considers
appropriate, but shall take into account the wishes of the parties including any
request by a party that the mediator hear oral statements, and the need for a
speedy settlement of the dispute.
(6) A mediator may end the mediation whenever the mediator is of the opinion
that further mediation between the parties will not help to resolve the dispute
between the parties.

Appointment of mediator – s.66

Confidentiality – disclosure of info (s.78); confidentiality of mediation (s.79)

Limitation to party’s privilege – s. 79(3)

Role of mediator in other proceedings – s. 84- unless agreed upon by both

parties, a mediator shall not act as an arbitrator or counsel of a party in an arbitral
or judicial proceeding in respect of the same dispute; mediator shall not be
presented by the parties as a witness….

Termination- med may be terminated at anytime by a party or the mediator when

med is not worthwhile. Med is automatically terminated upon execution of a
settlement agreement- s.80

Settlement agreement- s.81- where a settlement is reached, the terms will be

written down and signed by the parties b4 they leave the med & the terms shall
be carried out asap. Enforceable by judicial proceedings.

Exclusion of liability – s. 86- mediator shall not be liable to a party for an act or
omission in performance of the med unless it was done in bad faith.
Mediation fees- s. 87- unless otherwise agreed upon, expenses shall equally be
paid by both parties..

Dealing with difficult mediations

 Take a break from mediation- relaxation

 Adjourn to another day
 Encourage the parties.- mediator should acknowledge whether progress has
been made to reinforce it.
 Change the focus of the mediation- shuffle b/n issues
 Remind parties of their BATNA & WATNA
 Share your experiences
 Practice active listening
 Validate the parties’ interest- the more ppl feel validated in their own
interests. The more willing they are to listen to the interests of others.
 Create options
 Admit mistakes
 Disclose relevant info

CAUCUSING

A caucus is a deliberate pause in the mediation, at the instance of the mediator,

for meeting privately with each party or combination of parties. It is a useful
technique to deploy when mediation gets stuck. It is confidential & the mediator
can only disclose info gathered in caucus with authorization. It may be used to
gather additional info confidentially upon the prompting of the mediator. It may
also be used to assist a party to assess the strengths and weaknesses of a case, or
the best and worst options available to that party. A mediator could thus use
caucus to for e.g., indicate the legal fees, emotional costs and time in litigating the
dispute. It could also be used to foster greater trust and confidence in the
mediator, thus inviting more forthright responses from the disputants. It could
also be used as an educational tool to provide explanations and clarifications
about the mediation process.

Advantages of mediation over litigation

  Consensual nature of the process section 80
 Confidentiality section 79
 Creation of less intimidating atmosphere section 72
 Personal involvement of the parties in the process
 Saves time and money
 Freedom of choice of mediator section 66
 Parties’ participation in arriving at mutually acceptable solution.

Disadvantages

 It does not sufficiently safeguard the legal rights of the disputants

 It lacks the procedural safeguards which attend in court trial
 A failed mediation adds to delay and increased costs in finally resolving the
dispute
 Its consensual nature makes it a vulnerable process
 It is unsuitable for certain types of disputes which involve, for e.g., serious
crimes, sexual offences and constitutional infringements
 It detracts from case law jurisprudence which underpins the common law,
since no precedents are est’d in mediations.

Situations in which application of mediation may be awkward

 Constitutional litigation. E.g. mediation cannot be used to strike down

legislation.
 Not suitable when parties are interested in creating a precedent. E.g.,
where the parties put forward a test case for decision.
 Where the dispute has generated so much acrimony b/n the parties that
nothing short of litigation would be satisfactory.
 Where the parties are unwilling to deal with each other in good faith.
 Where serious criminal offences have been committed.

The most important issue after mediation is the enforcement of the mediated
agreement.